THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 117 ENGLISH

Pendakwa Raya v Arumugam A/L Muniandy and 5 Others
Suit Number: Rayuan Jenayah No. N-05(LB)-85-02/2016  

Criminal law – Murder – Abetment of murder – Failure of prosecution to establish a prima facie case – Acquittal – Appeal

Criminal law – Evidence of persons closely related to the victim – Reliability – Whether the trial court erred in law and in fact in rejecting the evidence of an eyewitness and holding her as an unreliable witness

Criminal law – Amendment of charges – When can charges be amended – Whether the trial court erred in law and in fact in rejecting the prosecution’s application to amend the charge

Criminal law – Alibi – Requirement of statutory notice – Whether the trial court erred in law and in fact in holding that the Investigating Officer had failed to thoroughly investigate the alibi defences raised

JUDGMENT

Introduction

[1] In the High Court, the 1st to the 5th respondents (“the respondents”) were charged with the murder of one Muniandy a/l Vadivelu, under section 302 of the Penal Code (“PC”), read together with section 34 of the PC. The 6th respondent was charged with abetting the 1st-5th respondents in the commission of the said murder under section 109 of the PC read together with section 302 and section 304 of the PC. The offence was alleged to have been committed on 25.10.2014, at about 4.15 to 4.30 pm, at No. 82 Perumahan A3, Ladang Tanah Merah, Tanah Merah, in the District of Port Dickson, in the State of Negeri Sembilan.

[2] At the end of the prosecution’s case, after undertaking a maximum evaluation of the evidence, the learned trial Judge held that the prosecution had failed to establish a prima facie case against all the respondents. Consequently, the respondents were acquitted and discharged without their defences being called.

[3] Being aggrieved with the impugned decision, the Public Prosecutor appealed to the Court of Appeal.

[4] On 27.10.2017, learned Deputy Public Prosecutor (“D.P.P”) informed the Court that the prosecution had decided to withdraw its appeal against the 6th respondent. Consequently, the Court struck out the appeal against the 6th respondent and he was acquitted and discharged forthwith.

[5] The appeal was heard on 9.2.2018. After hearing the parties and taking into consideration the written submissions, we dismissed the appeal and affirmed the decision of the learned trial Judge. Our reasons for doing so now follow.

The Charge

[6] The charge against the 1st to 5th respondents reads-

“Bahawa kamu bersama-sama, pada 25 Oktober 2014 jam di antara 4.15 petang hingga 4.30 petang di No. 82 Perumahan A3, Ladang Tanah Merah, Tanah Merah, di dalam Daerah Port Dickson, di dalam Negeri, Negeri Sembilan, dalam mencapai niat bersama kamu berlima, telah melakukan pembunuhan dengan menyebabkan kematian terhadap MUNIANDY A/L VADIVELU (L) (NO. K/P: 920528-05-5475), dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah seksyen 302 Kanun Keseksaan dan dibaca bersama seksyen 34 Kanun yang sama.”.

Brief Facts of the Case

[7] The gist of the prosecution’s case may be stated as follows-

7.1. The prosecution’s case rested mainly on the testimony of Anitha a/p Sambatu (PW4), who is the widow and/or the wife of the deceased.

7.2. According to PW4, on the fateful day, while she was having a conversation with her husband (the deceased), in the living room at their house bearing the address as stated in the charge (“the said house”), she saw a white car stopped in front of the said house. She did not know what car was that.

7.3. Three (3) men alighted from the car and PW4 identified them as the 1st, 2nd and 5th respondents. PW4 also identified the 6th respondent as the person who was seated at the driver’s seat of the said car.

7.4. PW4 said the 1st, 3rd and 5th respondents entered their house and chased the deceased.

7.5. The deceased ran into a room and later ran towards the backdoor of the said house. PW4 said, at the time, the 2nd respondent who was wearing a cap, together with the other three (3) respondents, slashed the deceased with a parang.

7.6. Meanwhile, the 4th respondent was said to have put a knife at her and her daughter’s throats, asking them to remain quite.

7.7. After the deceased ran to the back portion of the said house, PW4 went to the back at the kitchen and saw the deceased being continuously slashed by the 1st, 2nd, 3rd and 5th respondents.

7.8. Subsequently, all the respondents absconded.

7.9. PW4 then call Balaguru (PW8) and her mother to inform about the incident.

7.10. The deceased was taken to the hospital whereby he was pronounced dead.

7.11. Dr. Mohd. Shah bin Mahmud (PW13) did the post-­mortem on the deceased. PW13 opined that the cause of death was excessive bleeding due to the multiple slashed wounds.

Findings At The Close Of The Prosecution’s Case

[8] The learned trial Judge held that the prosecution had failed to established a prima facie case against the respondents because-

(a) The evidence of the prosecution’s main witness, PW4, was riddled with contradictions and inconsistencies in material particulars, so much so that her evidence was totally unreliable;

(b) There was no evidence to implicate the respondents with the charge;

(c) There was no DNA evidence to link the respondents to the alleged crime; and

(d) The alibi defences raised by the 4th and 5th respondents was not thoroughly investigated by the Investigation Officer (PW12) and therefore had prejudiced the respondents.

The Appeal

[9] The decision of the learned trial Judge was assailed on several grounds, but before us, learned D.P.P has confined his arguments on the following grounds-

(a) That the learned trial Judge erred in law and in fact in rejecting the evidence of PW4 and in holding that PW4 was an unreliable witness;

(b) That the learned trial Judge erred in law and in fact in rejecting the prosecution’s application to amend the charge; and

(c) That the learned trial Judge erred in law and in fact in holding that the Investigating Officer (PW12) had failed to thoroughly investigate the alibi defences raised by the 4th and 5th respondents.

[10] We will discuss the grounds of appeal advanced by learned D.P.P in turn.

Ground (a)

[11] Learned D.P.P submitted that it is true that the prosecution’s case rested mainly on the evidence of PW4. According to learned D.P.P, it is trite that under the law, there is no requirement for PW4’s evidence to be corroborated. Any requirement for PW4’s evidence to be corroborated will conflict with section 134 of the Evidence Act 1950 which provides that no particular number of witnesses shall be required for proof of any fact. A general principle is that a case is not decided by counting heads.

[12] A court is entitled to convict an accused on the evidence of a single untainted witness if it is satisfied that such a witness is speaking the truth.

[13] Learned D.P.P further submitted that minor discrepancies in a witness’s evidence cannot be held to justify the rejection of testimony of such witness. Also, minor and immaterial discrepancies in the evidence of the prosecution’s witness cannot be held to be fatal to the entire prosecution’s case. Furthermore, for a contradiction to be held fundamental, it must touch substantially on the elements of the offence sought to be proved.

[14] Learned D.P.P posited that there is no rhyme or reason for the learned trial Judge to reject the testimony of PW4. The evidence on record revealed that-

(a) PW4 had no motive to implicate the 1st, 3rd, 4th and 5th respondents in the commission of the offence. When there is no evidence to show any improper motive on the part of PW4 to testify falsely against the respondents, the logical conclusion is that her testimony is worthy of full faith and credit. In other words, the testimony of a witness who has no motive or reason to falsify should be given credence.

(b) PW4 had positively identified the 1st, 3rd, 4th and 5th respondents as the persons who slashed the deceased because PW4 said she knew them before the incident and they were from the same Ladang and/or they stayed in the same area.

(c) The incident occurred at about 3.00-3.30 pm and PW4 had a clear view of the 1st, 3rd, 4th and 5th respondents when they were in the said house. They alighted from a car and slashed the deceased in one of the rooms of the said house and later at the back part of the said house.

(d) PW4 had positively identified the 5th respondent as one of the persons who came to the said house because he was the one who put a knife at her throat when the deceased was being slashed by the 1st, 3rd and 4th respondents.

(e) After the deceased managed to escape from the room and ran towards the backdoor of the said house, PW4 again saw the deceased being slashed by the 1st, 2nd, 3rd and 5th respondents and the deceased’s blood was spurted on the walls of the said house. (See photographs Exhibits G-J).

(f) The identification of the respondents was not by way of a fleeting glance because the incident occurred for a duration of between 10-15 minutes and the respondents were not wearing any mask. (See Duis Akim & Anor v P.P [2014] 1 MLJ 49).

(g) PW4’s evidence is supported by the nature of injuries sustained by the deceased. PW13, in his evidence testified that the deceased sustained-

“(i) Luka hirisan 2.5 x 0.5 cm di sebelah kanan kepala.

(ii) Luka hirisan 4 x 0.5 cm di bahagian belakang sebelah kanan kepala.

(iii) 3 luka hirisan tipis di sebelah lengan atas sebelah kanan.

(iv) Bahagian bawah siku hampir putus dengan kesan tetakan ukur lilit 21 cm yang menghiris otot, salur arteri, salur vena dan juga urat saraf. Bahagian tulang lengan bawah juga terpotong.

(v) Luka hirisan 3 cm panjang di tangan kanan.

(vi) Luka hirisan tipis 5 x 1 cm di lengan bawah sebelah kiri.

(vii) Luka hirisan 9 x 1 cm di tapak tangan kiri.

(viii) Kaki kiri putus di bahagian atas pergelangan buku lali dan memotong otot, salur arteri, salur vena dan urat saraf.

Fatal wounds are-

(i) Luka tetakan yang memutuskan kaki kiri.

(ii) Luka tetakan yang hampir memutuskan siku kanan.

(iii) Luka tetakan yang hampir memutuskan siku kiri.”.

[15] In reply, learned counsel for the respondent submitted that PW4, being the widow and/or the wife of the deceased, may well be a witness with an interest to serve or her evidence may be biased in favour of the prosecution. Therefore, it is incumbent upon the court in considering evidence from such witness, to warn itself against the danger of false implication of the respondents in the commission of the offence and that the court should take necessary steps to avoid such a danger.

[16] In our view, the mere fact that PW4 is the widow/ wife of the deceased would not by itself be sufficient to discard her testimony straight away unless it is proved that her evidence suffers with serious infirmities which raises considerable doubt in the mind of the court. However, her evidence should be subjected to a close scrutiny. “Related” is not equivalent to “interested”. A witness can be called interested only when he or she derives some benefit from the result of a litigation in a civil case or in seeing an accused punished in a criminal case. The relationship by itself is not a ground to discredit testimony of a witness, if it is otherwise found to be consistent and true. (See Balasingam v P.P [1959] MLJ 193; Liow Siow Ling v P.P [1979] 1 MLJ 40; Masalti v State of U.P AIR 1965 SC 202, Hari Obula Reddi and Others v The State of Andhra Pradesh AIR 1981 SC 82, Kartik Malhar v State of Bihar [1996] 1 SCC 614; Pulicherla Nagaraju alias Nagaraju Reddy v State of Andhra Pradesh AIR 2005 SC 3010).

[17] It cannot be laid down as an invariable rule that the evidence of closed relatives can never form the basis of conviction unless corroborated in material particulars by independent evidence. If this is the case, crime that occurs in family environments where no witness other than close relatives and friends are present, would go unpunished for want of corroborative evidence. Credible available evidence would be rendered insufficient on the technicality of want of independent corroboration. This would severely circumscribe the criminal justice system by asphyxiating the courts even where the ends of criminal justice are evident.

[18] Having said that, we hasten to add that if it is discernable from their evidence that they have interest of their own to serve or motive to falsely implicate the accused, then their evidence should be treated with caution and should be corroborated in regard to material particulars by an independent evidence before they are accepted.

[19] In Magendran Mohan v P.P [2011] 1 CLJ 805, the prosecution’s case was based entirely on circumstantial evidence. One of the witness was the deceased’s sister (PW5). PW5 testified that the deceased and the accused (who were lovers) came back to the house and subsequently the couple had a quarrel when the accused uttered words: “Saya akan ajar awak di sana”. PW5 admitted that she hated the accused. The Federal Court held-

“It is clear to us that from her testimony she was an interested witness with a grudge against the appellant and had purpose of her own to serve. In our judgment her evidence must be treated with caution and requires corroboration...”.

[20] The Indian Supreme Court in Raju @ Balachandran and Ors v State of Tamil Nadu AIR 2013 SC 983 broadly identified four categories of witnesses as follows:

“33. For the time being, we are concerned with four categories of witnesses-a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.”.

(Emphasis is ours).

[21] Learned counsel for the respondents submitted that the contradictions in PW4’s evidence are so material that they rendered her evidence unreliable. According to learned counsel, the vexed legal issue which this Court has to decide is whether the evidence of the prosecution’s star witness, PW4, given its deficiencies and contradictions was such a nature, could it be relied upon to satisfy the Court that the guilt of the respondents had been proved beyond reasonable doubt. It is trite that in a criminal trial, the prosecution bears the onus to prove the guilt of the respondents beyond reasonable doubt. There is no onus on the part of the respondents to prove their innocence or to convince the court of the truthfulness of their explanations.

[22] We have scrutinised PW4’s evidence carefully and we were in full agreement with the findings of the learned trial Judge that PW4 had contradicted herself on the fundamental aspects of the evidence linking the respondents to the crime.

[23] The learned trial Judge had adequately dealt with specific contradictions and deficiencies in the evidence of PW4. To save judicial time, we reproduce the relevant part of the learned trial Judge’s grounds of judgment hereunder-

“38. PW4 said she saw 4 men alighting from the car and chased after her husband and one of them put a knife at her throat and he daughter’s throat. This is in evidence at page 33:

“20 J: Semasa saya bercakap-cakap dengan suami saya di dalam rumah, tiba-tiba sebuah kereta warna putih tiba di hadapan rumah dan 3 orang lelaki keluar daripada kereta tersebut menuju ke arah rumah saya. Saya tengok mereka melalui cermin tingkap rumah saya. Ketiga-tiga lelaki tersebut masuk ke dalam rumah dengan parang. Dan husband saya tengok mereka dan cuba melarikan diri ... salah seorang daripada 3 lelaki yang masuk ke dalam rumah telah meletakkan pisau pada leher saya dan pada perut saya leher anak saya yang bernama Vasugi.”.

She said in evidence that these 3 men were Arumugam (OKT 1), Sentil (OKT 3) and Musang (OKT 5).

Further when PW4 was asked by D.P.P as to who was the person who put the knife at her throat, PW4 said that he was not one of the 3 men that came out of the car the first time i.e there was a 4th man that came into her house on that day and she knows him as Ramesh (OKT 4) (refer to pages 37 and 38 of the Notes of Evidence).

39. PW4 said that OKT 5 (Ranjanan) had chased and slashed her husband at the material time. However the evidence of the investigating officer (PW12) said that in his investigation, he found that OKT 5 (Ranjanan) was sleeping in his house and only went out from his house after 4.30 pm. The charge envisaged the incident at 3.00-3.30 pm.

40. In addition PW4 at first said that she saw OKT 5 (Ranjanan) came after her husband but did not see OKT 5 (Ranjanan) slashing her husband. But subsequently, she changed her evidence and said that OKT 5 (Ranjanan) did slash her husband. This is evident at page 45 of the Notes of Evidence:

“S: Musang berapa kali anda tengok dia tetak suami kamu dengan parang?

J: Saya ada nampak Musang menyerang suami saya tapi saya tidak nampak dia tetak suami saya atau tidak.

S: Serang ini serang bagaimana?

J: Sekarang dia cakap dia ada tetak gunakan parang.”.

41. At page 53 of the Notes of Evidence, PW4 in examination in chief said that she identified the person who had driven the car on the date of the incident as OKT 6 (Veera Ganesh).

However according to Identification Parade Report at P39 (The identification parade was conducted on 2.11.2014 at 3 pm), it was recorded that PW4 identified the person who drove the car at that time was one by the name of Vinoth a/l Vgayasuryanr. It is to be noted that Vinoth a/l Vgayasuryanr has not been charged.

42. In addition, when the prosecution tendered P42 which is the Identification Parade Report for the identification parade conducted on 4.11.2014 at 3 pm, where OKT 6 (Veera Ganesh) was one of the line up in the parade, PW4 could not identify OKT 6 (refer to pages 143 and 144 of the Notes of Evidence). This report was never made available to the defence before trial. This amounts to suppression of evidence on the part of the prosecution.

This is crucial, as it shows that PW4’s identification of Veera Ganesh (OKT 6) at the trial is in doubt. I say this because PW4 could not identify Veera Ganesh (OKT 6) on 4.11.2014 at the identification parade, which was hardly a month after the incident. However, a year later at the trial, PW4 could identify Veera Ganesh (OKT 6) as the person who had driven the car on the date of the incident.

43. In examination in chief of PW4, the name of Vinoth (he is not the accused person herein) was never mentioned as one of the assailants who came and attacked the deceased.

However in re-examination PW4 at page 127 of the Notes of Evidence, PW4 said that Vinoth had slashed her husband on the material date. This is evident from the questions posed by the D.P.P in re-examination as follows:

“S: Jadi yang dia camkan Vinoth ini tadi dia kata sehari sebelum kejadian datang berlegar-legar di hadapan rumah itu?

J: Saya camkan Vinoth tetak suami saya. Dia guna parang tetak suami saya.”.

The Court had also asked PW4 for confirmation on the said identification:

“S: Cam Vinoth sebagai orang yang tetak suami?

J: Ya, tetak suami saya.”.

“DPP: Laporan di hadapan kamu adalah laporan berkenaan Vinoth. Sebab sebelum ini dalam keterangan kamu, kamu tidak pernah timbulkan nama Vinoth pun sebagai orang yang tetak suami kamu pada 25.10.2014.

J: Salah seorang adalah Vinoth Kumar.”

44. There was an attempt by the prosecution when the DPP was re-examining PW4, to suggest to her that Vinoth was the one who drove the car on 24.10.2014 and not on 25.10.2014 (Page 125 of the Notes of Evidence). However upon me questioning PW4 on this issue, PW4 said that the identification parade was only done for purposes of the incident that happened on 25.10.2014 and not for 24.10.2014. (Refer to Notes of Evidence at pages 126 and 135).

45. Subsequently, when asked by the DPP, PW4 said that the person who drove the car at the material time on 25.10.2014 was Veera Ganesh and that she did not know who Vinoth is (refer to page 136 of the Notes of Evidence).

46. From the above evidence of PW4, my findings are that:

i) PW4 changed her testimony in examination in chief and in re-examination as to the presence of Vinoth at the crime scene and the role he played in attacking the deceased.

ii) The evidence that can be derived from PW4’s evidence is that Vinoth was present and had slashed the deceased on the material date, although he was never mentioned in examination in chief.

iii) The manner in which the DPP was putting questions to PW4 was as though he was cross examining her in view of her changing evidence like a chameleon.

iv) Due to the ever changing evidence with regard to the matter, PW4 did not see who was the driver of the white car and who actually attacked the deceased.

47. PW4 also said in cross examination that she could not identify the person who wore a cap when they came to her house.

In her earlier evidence at page 40 of the Notes of Evidence, PW4 said that she could identify the man who wore a cap as Guna Singam (OKT 2). But in cross examination, PW4 said she could not identify the driver of the car nor the man who was wearing the cap (refer to page 48 of the Notes of Evidence).

48. Then the evidence of the deceased being brought to the hospital. There was much confusion as whether the deceased was brought by Balaguru in his car to the hospital or that he was brought to the hospital by ambulance.

49. Earlier PW4 said with utmost confidence that the deceased was brought to the hospital in Balaguru’s (PW8’s) car, as she said she saw it. The evidence at page 47 shows that:

“S: Ke hospital ini untuk tujuan apa dan cara bagaimana pergi ke hospital?

J: Boss suami saya telah membawa suami saya ke hospital dan saya ikut beliau. Saya telah menaiki kereta kakak saya pergi ke Hospital."

50. During cross examination at page 92 of the Notes of Evidence:

“S: Kamu kata kamu berada di rumah pada 25.10.2014 betul?

J: Ya.

S: Dia dibawa dengan kereta siapa?

J: Kereta Balaguru.”.

51. At page 93 of the Notes of Evidence:

“S: Tapi kamu pasti pergi dengan kereta Balaguru?

J: Ya

S: Kamu lihat perkara itu?

J: Ya, saya pasti.”

52. However Balaguru’s police report at D40 stated that an ambulance came to the house and took the deceased to the hospital.

53. When it was put to PW4 that it is not true that the deceased was brought to the hospital in Balaguru’s car and Balaguru’s report was referred to her, PW4 then change her evidence and ultimately said that she did not know how the deceased was taken to the hospital.

54. There was also inconsistencies of evidence between PW4 and PW8 (Balaguru).

PW4 said that she did not inform Balaguru the names of the men who have entered her house, before going to the hospital. Balaguru said in evidence that he lodged a report before he went to the hospital. He said he did not speak to PW4 before he lodged the police report and that he did not speak to PW4 at the hospital as PW4 had fainted when he arrived at the hospital. However, at the same time, Balaguru in his evidence said that the names stated in his report (D40) were the names told to him by PW4.

This is added to the fact that PW4 said in evidence that she did not know the names of Guna Singham and Vinoth. The names of Ramesh was not in the report of Balaguru, but PW4 said that the name of Ramesh was mentioned to Balaguru.

55. Balaguru (PW8) mentioned of a white car Pesona No 6018 used by the Accused persons, when PW4 in her evidence stated that she did not know the type of car that the Accused persons were using on that day. Hence it was not possible for PW4 to have told Balaguru about the white car Pesona No. 6018. The question is how did Balaguru know about the make of the car.”.

[24] It is clear that the learned trial Judge had explained in great detail why she found PW4’s evidence to be incredible and why she disbelieved PW4’s version of event. In our considered view, there was no mishandling of the facts or the law by the learned trial Judge warranting appellate intervention.

[25] Our courts have repeatedly stated that due to the inherent fallibility of human observation and memory, the evidence of identification should be approached with caution as it is dangerously unreliable. It is not so much the question of whether the identifying witness is sincere, honest or even confident about the identity of the person or persons he or she identified. A court has to be satisfied that the evidence is reliable and that every possibility of an honest but mistaken identity is excluded.

[26] We are firmly of the view that the evidence of identification by PW4 did not pass the threshold. The bald and unsubstantiated assertion of PW4 is not sufficient safeguard against a possible mistaken identification. This is particularly so as her evidence was riddled with contradictions and inconsistencies in material particulars.

Ground (b)

[27] Learned D.P.P vehemently argued that the learned trial Judge erred in rejecting the prosecution’s application to amend the time stated in the charge from 4.15-4.30 pm to 3.00-3.30 pm.

[28] In support of his submission, reliance was placed on section 158 of the Criminal Procedure Code and the case of Dato’ Seri Anwar Ibrahim v P.P & Another Appeal [2004] 3 CLJ 737 at pages 758 and 781. It was the contention of the learned D.P.P that the charge may be amended at any time before judgment is pronounced.

[29] We accept learned D.P.P’s argument that trial court may alter or add to any charge at any time before judgment is pronounced as provided under section 158 of the Criminal Procedure Code. In some common law jurisdictions, amendments have been allowed even during late stages of trial, provided that the amendment will not cause injustice to the accused. For example, the Court of Appeal in England said in R v Johal and Ram [1972] Crim App. Rep 348-

“[T]he longer the interval between arraignment and amendment, the more likely is it that injustice will be caused, and in every case in which amendment is sought, it is essential to consider with great care whether the accused person will be prejudiced thereby.”.

[30] In our view, the learned trial Judge had correctly rejected the prosecution’s application to amend the charge on the following reasons-

(a) The amendment sought is not the result of the subsequent acquisition of materials unavailable at the time of drafting of the charge. The fact remains that the prosecution knew the whole case against the respondents long before it was made known to the respondents.

(b) To allow the amendment at this late stage would infringe the right of the respondents to be informed promptly of the charge against them, thus placing them at a disadvantage in the preparation of their defences.

(c) It is the stand by the defence that all along PW4 was never at the scene of the crime at the material time. To achieve that, the defence sought to prove that PW4 was not a credible witness and her testimony on the accuracy of the events that took place is a critical issue. To allow the amendment would greatly prejudiced the respondents at the late stage of the trial.

(d) Section 153(1) of the Criminal Procedure Code clearly states that the charge shall contain such particulars as to the time. Clearly, “time” is a material matter and an essential part of the alleged charge. It follows, therefore, such particulars must be proved. The 5th respondent raised the issue that during the time 3.00-3.30 pm, he was at home. Therefore, the issue of time as to when the incident happened is very crucial to determine the veracity of the evidence of PW4.

(e) The application to amend the charge was made at the time when parties are in the midst of the submissions and it would greatly prejudice the defence.

Ground (c)

[31] The learned D.P.P submitted that the learned trial Judge erred in holding that the defence of alibi has been raised by the respondents. The respondents failed to comply with section 402A of the Criminal Procedure Code where a written notice containing particulars of the alibi must be given in the manner as stipulated in the said section. (See Hussin Sillit v P.P [1998] 1 CLJ (Rep) 128).

[32] We agreed with learned D.P.P that evidence in support of alibi shall not be admitted unless the respondents had given notice of alibi as stipulated under section 402A of the Criminal Procedure Code. This is a mandatory requirement and if not complied with, the evidence in support of alibi is inadmissible. (See Ku Lip See v P.P [1982] 1 MLJ 194, Vasan Singh v P.P [1988] 3 MLJ 412).

[33] The requirement of notice of alibi is a rule of expediency intended to guard against surprises alibis fabricated in the witness box which the prosecution is almost powerless to challenge. This type of surprise alibi testimony, when based on perjury, may often lead to an unjust acquittal. Professor Millar, in the Modernization of Criminal Procedure, II J. CRIM. L., C. & P.S.344, 250 (1920) wrote-

“That manufactured alibi is one of the main avenues for escape of the guilty needs no demonstration. Moreover, the amount of perjury that is annually committed in this connection forms a most considerable item in the mass of unpunished crime. This would be checked and the fabricated alibi rendered most difficult, if the accused were to be required to give the prosecution such notice of intended defence as would enable it to confirm or refute the accused’s assertion.”.

[34] In this instant appeal, learned counsel for the respondents submitted that the learned trial judge was correct in considering the defence of alibi in spite of the respondents’ failure to give notice of alibi in terms of section 402A of the Criminal Procedure Code. According to learned counsel, alibi evidence should be admitted when it does not surprise or otherwise prejudice the prosecution’s case.

[35] According to learned counsel, in this instant appeal, as far as the 4th respondent is concerned, according to the Investigation Officer (PW12), the 4th respondent in his statement to the police said that on 25.10.2014, when the crime was committed, that he was gambling at the oil palm plantation with some friends, Paramsivam, Letchumanan and one by the name of Chinakui from 2.00 pm. It was also in evidence that, in his statement to the police, the 4th respondent also said that at 2.00 pm, he stopped gambling and went over to see his friend by the name of Lim to borrow RM50.00 and went back to continue with his gambling at the oil palm plantation until 4.00 pm. Further, in the 4th respondent’s statement to the police, he said that subsequently, at 4.30 pm, his friend by the name of Chinakui received a call informing him that there had been a fight at Tanah Merah. After that, at around 4.30 pm-5.00 pm, the 4th respondent also said he received a call from a policeman by the name of Yazid informing him and enquiring about the fight that had taken place. The 4th respondent told Yazid that he would go and check out as at that time he was gambling. After that, all of them that were gambling including the 4th respondent, went to the scene of the crime and met with one by the name of Kennedy. Kennedy informed the 4th respondent about the fight that resulted in limbs being severed. Subsequently, the 4th respondent went home.

[36] The 4th respondent had mentioned names like Letchumanan, Paramsivam, Chinakui, Kennedy in his statement to the police. Although PW12 had investigated the persons who were gambling with the 4th respondent, PW12 never investigated Yazid and Kennedy. No explanation was given as to why the investigation officer failed to investigate Yazid and Kennedy. Kennedy could very well confirm whether the 4th respondent was at the crime scene at the material time. However the prosecution never called these persons who are crucial to its case.

[37] A far as the 5th respondent (Ranjanan) is concerned, he raised the defence of not being at the crime scene. The 5th respondent had given a statement to the police that he had taken liquor on 25.10.2014 from 2.30-3.30 pm. As a result, he was drunk and had slept over until 4.30 pm. During that time, the 5th respondent said in his statement that he was at his house together with his wife and mother. The Investigation Officer (PW12) did not take any statement nor done any investigation on the wife and mother. His reasons being that “Ini disebabkan kerana Anitha adalah saksi mata dan juga saksi kepada Ranjanan adalah ibu dan isterinya”, which is not an excuse to not investigating the wife and mother of the 5th respondent.

[38] Balaguru’s (PW8) evidence cannot confirm the presence of the respondents at the scene of the crime nor could he confirm that it was the person/ persons who had caused the death of the deceased. His evidence which was supposed to lend support to the evidence of PW4, is also full of contradictions and in no way could lend support to her testimony.

[39] It is interesting to note that Singapore law gives the court the discretion to allow alibi evidence to be admitted even though the statutory notice has not been complied. In Lee Choon Chee v PP [1996] 1 SLR 264 Yong Pung How CJ said-

“However it is also recognised by the legislature that there may well be circumstances when it would not be possible to give the information at all or to do so within the prescribed period. Therefore, there remains a judicial discretion to allow alibi evidence to be adduced even when the statutory provision has not been complied with. Undoubtedly, this discretion must be exercised judiciously, based on the facts and circumstances of each particular case.”.

[40] In United Kingdom, the language of the English statute provides for harsh sanctions which include the accused not being able to provide his evidence to the jury if notice of alibi is not given. However, the judge is allowed to determine how the court should utilize the evidence. The Court in R v Sullivan, 1 Q 13 253 [1971], stated that the “aim of the legislation was not to limit the time the defence to exercise their ingenuity for the purpose of inventing an alibi” but to ensure that the prosecution have enough warning of an alibi to check on its genuineness and secure the attendance at court of any witness who might to able to disapprove it.

[41] An example of wide discretion given to the courts is displayed by Canada. In that jurisdiction, the courts use discretion to determine what should be done with the evidence if one of the parties does not comply with the rule. The general rule only provides that a court may draw an adverse inference upon the evidence based on a failure to comply with the rules of proper notice. In Cleghorn v Her Majesty the Queen 1995 Can. Sup. Ct LEXIS 59 (1995), the appellant testified that he was at home with his mother at the time he was alleged to have transacted a sale of cocaine. He failed to disclose his alibi in advance, and his mother sought to give particulars of his alibi but the court found that it was insufficient to give the police notice of possible defence. The learned trial judge refused to allow him to adduce alibi evidence at the trial and he was convicted. The Supreme Court, in dismissing his appeal, stated-

“... The consequence of a failure to disclose properly an alibi is that the trier of fact may draw an adverse inference when weighing the alibi evidence heard at trial … the rule governing disclosure of alibi is a rule of expediency intended to guard against surprise alibis fabricated in the witness box which the prosecution is almost powerless to challenge... As such, disclosure is proper when it allows the prosecution and police to investigate the alibi evidence before trial. The criteria of timeless and adequacy are thus on the basis whether a meaningful investigation could have been undertaken as a result of disclosure.”.

[42] As we have alluded to earlier, as far as the 4th and 5th respondents are concerned, they had raised the defence of alibis in their statements to the police. If the prosecution had doubt about the respondents’ alibis, appropriate measures should have been taken to verify them. The prosecution had an obligation and ample opportunity to investigate the respondents’ alibis. It is not proper to reject the alibis that had not been proved to be false. The respondents cannot be faulted for the unexplained failure by the prosecution, with all the resources available, to follow up on their alibis and to investigate them properly.

[43] In the circumstances of this instant appeal, the learned trial Judge was correct in considering the alibis within the general line of defence put forward by the respondents that they were not the perpetrators of the offence.

Conclusion

[44] In the light of the above, we were not satisfied that the prosecution had succeeded in establishing a prima facie case against the respondents. The case for the prosecution was woven basically on the testimony of PW4 and whose evidence was riddled with glaring contradictions and inconsistencies which go to the root of the charge. The learned trial Judge found PW4’s evidence did not inspire confidence and had created a genuine doubt about her version. Her evidence was not of sterling quality and wholly unreliable.

[45] We, therefore, have no alternative but to dismiss the appeal and affirm the decision of the learned trial Judge. So ordered.

Dated: 5th April 2018

sgd.

DATO’ SETIA MOHD ZAWAWI SALLEH
Judge
Court of Appeal
Malaysia

COUNSEL

For the Appellant: Hamdan bin Hamzah, Deputy Public Prosecutor, Appellate and Trial Division, Attorney General’s Chambers, No. 45, Persiaran Perdana, Precinct 4, 62100 Putrajaya

For the Respondent: Paul Krishnaraja Selladurai (Chong Chai Ling with him), Messrs. Paul, Amy Chong & Associates, Peguambela & Peguamcara, No. 271-G, Jalan Haruan 5/7, Oakland Business Centre II, 75450 Seremban, Negeri Sembilan

Legislation referred to:

Criminal Procedure Code, Sections 153(1), 158, 402A

Evidence Act 1950, Section 134

Penal Code, Sections 34, 109, 302, 304

Judgments referred to:

Balasingam v P.P [1959] MLJ 193

Cleghorn v Her Majesty the Queen 1995 Can. Sup. Ct LEXIS 59 (1995)

Dato’ Seri Anwar Ibrahim v P.P & Another Appeal [2004] 3 CLJ 737

Duis Akim & Anor v P.P [2014] 1 MLJ 49

Hari Obula Reddi and Others v The State of Andhra Pradesh AIR 1981 SC 82

Hussin Sillit v P.P [1998] 1 CLJ (Rep) 128

Kartik Malhar v State of Bihar [1996] 1 SCC 614

Ku Lip See v P.P [1982] 1 MLJ 194

Lee Choon Chee v P.P [1996] 1 SLR 264

Liow Siow Ling v P.P [1979] 1 MLJ 40

Magendran Mohan v P.P [2011] 1 CLJ 805

Masalti v State of U.P AIR 1965 SC 202

Pulicherla Nagaraju alias Nagaraju Reddy v State of Andhra Pradesh AIR 2005 SC 3010

R v Johal and Ram [1972] Crim App. Rep 348

R v Sullivan, 1 Q 13 253 [1971]

Raju @ Balachandran and Ors v State of Tamil Nadu AIR 2013 SC 983

Vasan Singh v P.P [1988] 3 MLJ 412

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