GROUNDS OF JUDGMENT
[1] The Appellant, Bunya Anak Jalong (I/C No:
541004-13-5351) appealed against the dismissal by the High Court in Sibu of his
appeal against his convictions by the Sessions Court in Sibu.
The Appeal Before This Court
[20] We reproduce below the main parts of the grounds of
appeal set out by the Appellant:
"1 1.1 The Learned High Court Judge had failed to
appreciate adequately, properly or at all the effect and impact to the case of
the fact that neither the Appellant's nor PW4's name were ever registered as
guest(s) in ToDay's Hotel Register, in particular, as follows: ......
1.2 The Learned
High Court Judge had erred in law and in fact when she said the direct evidence
of PW4 that the rape occurred in To-Day Hotel sufficiently rebutted the
presumption that she and the Appellant had not been guests at the hotel or that
the accused had never taken her to To-Day Hotel, when that evidence of PW4
itself would be rendered untrue by the fact which triggered the presumption
i.e. the fact that the names of PW4 and the Appellant were not found in the
Hotel Register and when the truth of what PW4 has said was itself in issue and
in question because it
contradicts the Hotel Register which was a contemporary
document and when the Hotel Register
would show her evidence that she was taken to ToDay Hotel
to be untrue.
1.3 The Learned
High Court Judge had seriously erred in fact and in law when she held it was
unnecessary to call the Inn-keeper because all they would come up with was the
already known fact that "the name of the accused was not found" in
the Register when what the Inn-keeper was required to explain was why, if
the accused and PW4 had been to To-Day
Hotel, their names were not in the Hotel Register at all. Further, the Learned
High Court Judge and the Trial Judge have both failed to consider the
likelihood that the Innkeeper, if called, will confirm the fact revealed by the
Hotel Register that PW4 and the accused had never been to
To-Day Hotel.
1.4 The Learned
High Court Judge had erred in fact and in law in failing to hold that the
prosecution had failed to rebut the statutory presumption.
1.5 The Learned
High Court Judge had erred in not having sufficiently taken into account a fact
favourable to the accused i.e. the absence of his and PW4's name in the
Register would show the accused's version is true that he and PW4 had not been
to ToDay Hotel.
1.6 The Learned
High Court Judge and the Learned Trial Judge have both failed to appreciate
that the Hotel Register would render the evidence of PW4 untrustworthy,
doubtful and unreliable on a core issue at the trial.
1.7 Both the Learned
High Court Judge and the Trial Judge have failed to take into account the fact
that PW4 was unable to tell the police the name of the hotel she had been to
despite the fact that the hotel's name prominently appeared and shown at its
entrance and she was then already a Form 3 student and that it was only when
she was taken around by the I.O. on a patrol around Sibu town that she pointed
out a hotel i.e. she had to point out a hotel when she was taken for a drive
around by the police. But then that Hotel Register did not contain her's or the
accused's name.
2. The Learned High Court Judge had erred in law and in
fact when she said it was of no consequence that the misdirection, if any, on
the part of the Trial Judge in saying the defence was one of alibi and hence in
deciding that a Notice of Alibi was required and that because there was no such
notice it is fatal to the defence because such misdirection by the Trial Judge
has led to a failure of the Trial Judge to consider invoking the presumption
under S.114 of the Evidence Act and the failure to appreciate that the Hotel
Register would show PW4's evidence to be untrue or is not credible and
conversely that the evidence of the Appellant to be true as it is supported by
the Hotel Register.
3. Both the Learned Trial Judge and the Learned High
Court Judge on appeal have failed to appreciate adequately and properly or at
all the evidence of the Dr. Nurulhuda Binti Samsudin, Obstetrics &
Gynaecology Specialist (PW8) when she said that in a normal case where the
woman is fertile and the man is fertile conception can occur as long as semen
bearing spermatozoa is introduced into
the vagina, (Q15 of cross-examination of PW8 at page 100 of AR) and when she
also said there was no need in such a case for supervised medical process as in
the intrauterine insemination (Q16 of cross-examination of PW8 at page 101 of AR), and the effect of
that expert
evidence, in particular, as follows:
(i) That such evidence would corroborate the accused's
evidence and would render it not an
incredible story but a reasonable and probable story;
(ii) That such evidence would provide no corroboration to
PW4's evidence because it would also
corroborate the accused's evidence;
(iii) That such evidence would render neutral the effect
of the DNA report of the chemist because it would show that conception of the
child would not necessarily be by sexual intercourse but also
could be by non-sexual intercourse activity as given in
evidence by the accused i.e. the insertion
of the finger laden with semen bearing spermatozoa into
the vagina.
3.1 Both the
courts below have erred in failing to appreciate that the evidence of PW8
relating to
intrauterine insemination which required medical
facilities and supervision and which success rate is
very low applies only to couples having difficulty in
bearing a child because either one of them is infertile and is not applicable
to normal couples who are fertile.
3.2 The Learned
High Court Judge had erred in law and in fact when she said:
"Furthermore, there simply is no evidence that the
Appellant and PW4 were a fertile couple
when the approach ought to have been to ask whether there
was evidence that they are not
normal couple and are infertile. In the absence of such
evidence that they are infertile or had
difficulty in bearing a child, they should have been
taken as being normal couple having no
difficulty in bearing a child and that such conception of
a child for them could occur even with non-sexual intercourse activity which is
what PW8 has said."
3.3 The Learned
High Court Judge had failed to appreciate adequately or at all that the Trial
Judge
had erred when he said "However, we must bear in
mind that PW8 has clarified that conception without sexual intercourse is not
easy as it needs medical equipment" when PW8 never said that but had said
to the contrary i.e. in a normal case conception can occur without supervised
medical process and that therefore the Trial Judge had used something which PW8
never said in finding PW4 evidence reliable and conversely in finding the
accused's evidence not reliable.
4. The Learned High Court Judge had failed to appreciate
adequately or at all the materiality of the
absence of any finding by the Learned Trial Judge on
whether the alleged offences in the 2nd, 3rd and 4th charges were with or
without the consent of PW4mbecause this issue would go to affect the entire
credibility of PW4 as a witness and whether her entire evidence can be relied
on or whether it was conversely a made-up story and she being rendered an
unreliable witness and further whether she had told an inherently incredible
story in court when she said all the four incidents were by force and without
consent and all had occurred in exactly the same manner i.e. a story
contradicted by what she had told the
I.O. i.e., for the three incidents she had consented which led to those three
charges being under S.376(1) and not under S.376(2)(d).
5. The Learned High Court Judge had erred in ruling that
the misdirection on the part of the Trial Judge when he said PW4 had told of
the other incidents not long after telling of the incident in August 2011 is
not fatal when that finding of "not long after" telling of the
incident in August, 2011 to PW3 and PW13 formed the very basis for the Trial
Judge to find PW4 a credible witness (paragraph 16 of the Ground of Decision of
the Se Sessions Court Judge at page 369 and 340 of the AR) and that basis of
the Trial Judge's finding by the misdirection does not exist in fact.
6. The Learned High Court Judge ought to have realized
that the Learned Trial Judge had erred in finding that PW4 was a credible or
convincing witness when ....
7. The Learned Trial Judge and the Learned High Court
Judge have failed to take into account sufficiently or at all the evidence and
facts which are favourable to the accused and the details of the evidence of
the accused in his defence in particular; ...
8. The Learned Trial Judge and the Learned High Court
Judge have failed to critically evaluate and scrutinized the entire evidence of
PW4 including the fact that it is not adequately corroborated or at all and
have failed to take into consideration the matters listed in paragraph
6(1)-(12) above.
9. The Learned Trial Judge and the Learned High Court
Judge have failed to realize that the prosecution has failed to prove its case
beyond any reasonable doubt and that the defence has raised a reasonable doubt
in the prosecution case and that the defence story can reasonably and probably
be true.
10. The Learned High Court Judge had erred in fact and in
law in failing to find and to hold that the trial of all four (4) charges of
rape together in one trial was a contravention of the mandatory prohibition of
the Criminal Procedure Code and in failing to hold that the trial was a nullity
particularly when dealing with the appeal against sentence she had said the
offences were separate and distinct offences which therefore means they could
not all be tried together in one trial.
11. The Learned High Court Judge had erred in ordering
the imprisonment sentence to run consecutively when she had found that the
offences were committed in the same transaction and when the trial Court had
passed a concurrent sentence.
12. The sentence of whipping to a total of 11 strokes is
too exercise (sic).
13. The court below had erred in ordering compensation to
PW4 when it is inappropriate in the circumstances and when there was no
consideration at all to the means of the accused to pay such huge compensation
and where there was no proper assessment of the damages that has occurred to
PW4 and when the ordering of compensation would turn the criminal court to
exercise the function of a civil court. The accused ought not to be further
burdened when he has been sufficiently sentenced to imprisonment and to
whipping. In any case, the compensation ordered is too excessive in the
circumstances. "
The Issues
[21] The Learned Deputy Public Prosecutor ably summed up
the prolix and repetitive grounds of appeal and set out the issues as follows:
Issue 1: Whether the fact that the Hotel Register did not
show that the accused or the victim had checked into the hotel during the
material time was fatal to the prosecution case.
Issue 2: Whether PW4 was a credible witness.
Issue 3: Whether the learned High Court Judge had erred
when deciding that is of no consequence that the misdirection, if any, on the
part of the Trial Judge in saying the defence was one of alibi.
Issue 4: Whether the learned Trial Judge and the learned
High Court Judge failed to appreciate the evidence of PW8 that conception
without sexual intercourse could occur.
Issue 5: Whether PW4's evidence was not adequately
corroborated.
Issue 6: Whether the four charges can be tried at one
trial.
Issue 7: Whether the Appellant had raised a reasonable
doubt to the prosecution case.
[22] We proceeded to address the issues as follows with
the grounds of appeal in mind.
[23] In this case, the victim, then below the age of 15
years, became pregnant and gave birth to a child on 5th February 2012 whose DNA
proves conclusively that the Appellant is the father. The Appellant at the time
of the alleged 1st offence was 56 years 7 months. The DNA evidence that he is
the father of the child of the victim then aged below 15 years provided
compelling evidence that the Appellant had committed the alleged rapes as
charged and must be punished as provided by law.
We used the term alleged rapes for it is a fundamental
principle of the criminal law that a person is deemed innocent until proven
guilty.
Issue 3
[24] Issue 3 concerned what the Trial Judge termed as a
defence of alibi. The defence that the name of the Appellant was not registered
in the Register of the To-Day Hotel was, in our view, incorrectly termed in
this case as a defence of alibi since the subject was brought up to contradict
the prosecution case in the charges that the Appellant took PW4 to the To-Day
Hotel and that the alleged rapes occurred there, and not purely that the
Appellant could not have been the rapist as alleged because he was elsewhere.
[25] The defence of alibi is about evidence that an
accused was elsewhere at the time and occurrence of an alleged offence, and
therefore notice must be given under section 402A of the CPC to give
opportunity to the Public Prosecutor to verify the evidence of witnesses listed
in the notice of alibi as to whether the accused had raised a reasonable doubt
as to where he was.
[26] Since the High Court on appeal had accepted it was
not a defence of alibi, the question now is whether the error on the part of
the Trial Judge was material. In the light of the conclusive DNA evidence that
the Appellant was the father of PW4's child, whether the incidents of rape by
the Appellant against PW4 was in the To-Day Hotel or elsewhere pales in
significance, as the primary issue is whether PW4's child is the product of the
alleged rapes by the Appellant. The date, time and place in a charge are to
assist the accused in preparing his defence, but unless it is demonstrated an
accused is prejudiced in the conduct of his defence, differences arising from
approximations in dates, times and places are not, by themselves, so
prejudicial as to render a conviction
fatal.
Issue 1, Issue 2 and Issue 5
[27] Issue 1, Issue 2 and Issue 5 are intertwined.
[28] Issue 1 and Issue 2 concern the finding of
credibility of the victim Jati anak Buan (PW4) that she was raped in the To-Day
Hotel at No. 40 Jalan Kpg Nyabor, when the register of the To-Day Hotel which
the Innkeeper is obliged by law to maintain, did not record the names of the
Appellant and PW4.
[29] It was submitted for the Appellant that an adverse
presumption ought to be drawn for the failure to call the Inn-keeper to explain
the absence of the names of the Appellant and PW4 in the Register of the To-Day
Hotel.
[30] Upon consideration of Issue 1, we observed that
whether their names were recorded or not was the act of the Inn-keeper and not
the Appellant, and the Inn-keeper may have had reasons of his own. If he had
reasons for the non-registration of the Appellant’s and PW4's names, then the
fact they were not registered does not mean they were not there. But the
Inn-keeper was not called. Now, while if the Innkeeper was called and the
matter could be explained, the absence of
evidence that the prosecution had the evidence of the
Inn-keeper but chose to suppress it, renders the drawing of an adverse
presumption to be a judicial discretion that is not judicially exercised.
[31] In Munusamy v Public Prosecutor [1987] 1 MLJ 492, it
was held by the Supreme Court that:
"It is essential to appreciate the scope of section
114(g) lest it be carried too far outside its limits. 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 possession, or for non-production of not just any witness but an important
and material witness to the case."
[32] Since an adverse inference can only be drawn if
there is withholding or suppression of evidence and not merely on account of
failure to obtain evidence, find no error in not drawing an adverse
inference. It was not shown from examination of other
witnesses that such evidence was taken so that non-production can only be
reasonably attributed to withholding or suppression. In the absence of an
adverse presumption, the finding as to whether they were in the To-Day Hotel
must necessarily be drawn from other evidence. In this case, it is that of the
victim, PW4.
[33] The Learned Trial Judge had found PW4 to be a
credible witness.
The credibility of PW4 was an issue before the Learned
Trial Judge, who was required and therefore entitled to find PW4 credible or
not and to accept or reject her testimony in whole or any part of it. The fact
that in finding PW4 credible the Learned Trial Judge did not appear to have
considered certain facts that might have a bearing upon the finding, is
immaterial where the certain facts do not have a determinative effect for a
finding to the contrary. A finding of credibility is distinct from a finding of
the accuracy of the testimony, and testimony may be accepted in one part yet
not in another, since findings of fact are arrived at upon a maximum evaluation
of all the evidence adduced and admitted into evidence before the Court, be it
at the prosecution stage or if the defence is called, at the end of the defence
case.
[34] Since for the reasons we have given earlier above
that the absence of the names of the appellant and PW4 in the To-Day Hotel
Register do not have a determinative value as evidence as to whether they were
or were not in the To-Day Hotel, the issue does not render the reasoning in the
grounds of decision defective.
[35] Issue 5 is as to corroboration of the testimony of
PW4. It is not the law that testimony of a victim or minor must necessarily be
corroborated in every material particular. Indeed a trial judge may convict
upon uncorroborated testimony if the trial judge, having warned himself of the
danger of convicting upon uncorroborated testimony, he
was nevertheless satisfied it was safe to do so on the uncorroborated
testimony: see for example Chiu Nang Hong v PP [1964] 1 LNS 24 PC;
Ramachandran & Anor v PP [1991] 1 LNS 82 CA; Datuk
Haji Harun Idris v PP [1976] 1 LNS 19; PP v Dato’ Saidin Thamby [2012] 4 C LJ
15 CA; Deepanraj Subramaniam v PP [2015] 3 CLJ 439 CA; Mohd
Khir Toyo v PP [2013] 5 CLJ 323 CA; Mohd Fadli Mohd Yusof
@ Katang v Lim Guan Eng v PP and Another
Appeals [1998] 3 CLJ 769 CA.
[36] The significance of the DNA evidence that the father
of the child borne by PW4 cannot be under estimated. It provided conclusive
evidence that the spermatozoa of the Appellant fertilised the ova of PW4 within
her. But as we have observed earlier above, the question is whether the
fertilization of PW4 ova by the Appellant's spermatozoa was as a consequence of
the alleged rapes as charged. This brings the matter to the incidents of
alleged rapes we will address in Issue 4 and Issue 7 below.
Issue 6
[37] Issue 6 pertains, if it is sustainable, to the
validity of the trial proceedings in respect of the four charges.
[38] Section 164 of the CPC provides that:
"164 Three offences of the same kind within twelve
months may be charged together.
(1) When a person is accused of more offences than one of
the same kind committed within the space of twelve months from the first to the
last of such offences, whether in respect of the same person or not, he may be
charged with and tried at one trial for any number of them not exceeding three.
..."
[39] The four offences the Appellant was charged with are
rapes. They are four offences of the same kind and within 12 months. The trial
of the Appellant on the 4 charges was prohibited by Section 164 which limits
the number of offences of the same kind he may be charged and tried within one
trial to three, regardless whether in respect of the same person or not.
[40] It was submitted by Learned Deputy Public Prosecutor
that the charges, trial and convictions fell within Section 165 which does not
limit the number of offences to three.
[41] Section 165(1) of the CPC provides that if in one
series of acts so connected together as to form the same transaction more
offences than one are committed by the same person, he may be charged with and
tried at one trial for every such offence:
"(1) If in one series of acts so connected together
as to form the same transaction more offences than one are committed by the
same person, he may be charged with and tried at one trial for every such
offence.
..."
[42] In PP v Ridzuan Kok Abdullah [1996] 2 CLJ 346, the
High Court addressed the question of joinder of two charges for offences
of trafficking under section 39B(1)(a)
and possession under section 6 of the Dangerous Drugs Act 1952 alleged to be
committed on 25.12.1992 at about 1.45 a.m. at No 5, Jalan Rantai 5, Taman
Kobena, Tampoi, in the District of Johor Bahru. Section 164 of the CPC was not
referred to as the offences were not of the same kind. The High Court applied
the test in Amrita Lal Hazra & Ors v Emperor [1915] 42 Cal 957, where 4
accused persons were charged with an offence under Section 4 (b) of Explosive
Substances Act , Act VI of 1908, while all the six accused persons were charged
with conspiracy under Section 120-B, Indian Penal Code. It was contended that a
joint trial of all these persons for the two offences charged was illegal. In
dismissing the contention, it was
held:
"It is not possible to frame a comprehensive formula
of universal application to determine whether two or more acts constitute the
same transaction; but circumstances which must bear on the determination of the
question in an individual case may be easily indicated: they are proximity of
time, unity or proximity of place, continuity of action and community of
purpose or design."
[43] We found little assistance from Amrita Lal Hazra
& Ors v Emperor which concerned 4 accused persons being tried together.
[44] We observed that section 164 pertains to
"offences of the same kind ... whether in respect of the same person or
not ...", while section 165 pertains to "... one series of acts so
connected together as to form the same transaction more offences than one are
committed by the
same person ...", and both these are exceptions to
section 163 which ensures that an accused is in no doubt or confusion as to the
particular offence for which he is charged and tried and must defend himself
against. Though the alleged incidents in this case, regardless the incidents
were in different months, involve the same accused, same victim, same offence
and same place, they involve separate offences of rape. That the charges
involve the same witnesses and evidence, and time and expense would be saved by
a trial of the 4 charges together, find no merit in the light of the specific
provisions of section 164 that only 3 offences of the same kind committed
within the space of twelve
months may be charged and tried together, and section 165
that an accused may be charged and tried together for offences that arose from
one series of acts committed by one person so connected together as to form the
same transaction. We failed to see how 4 rapes, and over 4 separate months, can
be seen as one transaction even if by the same accused upon the same victim and
in the same place.
[45] We observed also the reference in PP v Ridzuan Kok
Abdullah (supra) to Babulal Chaukhani v. King Emperor AIR 1938 PC 130 that the
Court must determine whether the acts were committed in the same transaction or
not at the time the charge was framed and not at the end of trial. This is for
the reason that section 163 of the CPC provides that for every distinct offence
of which any person is accused there shall be a separate charge, and every such
charge shall be tried separately, except in the cases mentioned in sections
164, 165, 166 and 170.
Therefore, when a trial is in breach of section 163 and
not saved by section 164 or 165 of the CPC, it constituted an illegality which
cannot be cured under section 422 of the CPC. See Jagar Singh v PP [1936] 5 MLJ
114, Yap Liow Swee v PP [1937] MLJ 225; Saw Tuan Cheong v PP [1946] 1 LNS 31
and Muthan v PP [1947] MLJ 86).
Issue 4 & Issue 7
[46] The police case began with a Police Report
SIBU/002281/12 made on 5.3.2012, by Rosmiati Binti Abdullah (PW3), the mother
of PW4:
"Pada 05.02.12 jam lebih kurang 1330 hrs anak saya
Jati ak Buan kpt: 960910-13-5034 (15 tahun) mengadu sakit perut. Lalu saya
membawanya ke Hospital Sibu. Tidak lama sampai di Hospital Sibu anak saya itu
telah bersalin dan melahirkan seorang bayi lelaki. Setelah disoal anak saya
memberitahu Bunya ak Jalong yang telah menyebabkannya mengandung. Disebabkan
itu saya membuat Laporan Polis untuk siasatan dan tindakan selanjutnya. Sekian
laporan saya. "
[47] The Police Report was made by PW3 one month after
the birth of the child. PW4 told PW2, PW3 and PW13 that the rape occurred in
August 2011. Later PW4 narrated 3 other incidents of rape to PW3 and PW13.
[48] The Trial Judge had at this point only set out the
charges, described the number of witnesses, ingredients to be established,
ruling at end of the prosecution case, calling the Appellant to enter upon his
defence, duty to consider whether prosecution had proved its case beyond
reasonable doubt, what reasonable doubt means, and said:
"10. At the end of Trial, after having considered
ill the evidence to a maximum evaluation the Court was satisfied that the Prosecution has proved its case
beyond reasonable doubt."
[49] We reproduce the grounds of decision of the Trial
Judge at some length in order that it is appreciated how the Trial Judge
arrived at his decision. After summarising briefly the testimony of PW4, the
grounds of decision continued as follows (at pp 368 to 379 of Rekod Rayuan
Jilid
3):
“ 15…….
The evidence of PW4 was consistent even though she was
vigorously cross-examined for a few days. I have no hesitation to agree with
the Prosecution that to say that the victim was making up a story is totally
unacceptable.
...
I am satisfied that the element of penetration is
sufficiently established in all the charges against the Accused. The Defence
cross-examination on PW4 had not in any event dislodge the Prosecution's case.
16. Now, the question is does PW4 is a credible witness?
I am satisfied that there is nothing in defence evidence can discredit the truthfulness of PW4 of being a
victim of rape by the Accused.
The defence disputed on the inconsistencies of the victim
statement to PW2, PW3 and PW13 especially to the number of incidents narrated
which is varied. There was a time where the victim only narrated of only one
Incident to PW2, PW3 and PW13. However, it was not long after she narrated of
only one incident that she narrated the other 3 incidents to PW3 and PW13.
I agree that the inconsistency in this case is reasonable
and does not affect the prosecution's case and it also does not change the fact
that the accused had penetrated his penis into the victim's vagina. After all
PW4 had duly explained that she was in a trauma, too embarrassed to tell the
whole story and afraid of being scolded by her parents.
17. Scrutinizing the defence evidences, the accused shifted
the blame on PW4 and the Accused denied of having sexual intercourse with PW4
and the Accused shifted the blame on PW4 for "inserting her finger laden
with the accused semen into her vagina".
The Accused line of defence is that the pregnancy of the
victim was not due to penile penetration. The defence rely on PW8 (Dr.
Nurulhuda) saying that there is possibility that conception can occur even
without sexual intercourse.
However, we must bear in mind that PW8 had clarified that
the conception without intercourse is not easy as it needs sufficient medical
equipment.
The Defence relied heavily on what purportedly transpired
at the toilet of YMCA Resort between the Accused and PW4.
The accused had denied any sexual intercourse with PW4
but admitted of masturbation by PW4 on the Accused on 12.06.2011 at the toilet
of YMCA Resort. The Accused ejaculated with his semen smearing PW4 fingers and
his own finger which later were inserted into PW4's vagina.
18. The Defence also submitted that the hotel register provided
unwittingly an alibi to the Accused, that is, it shows he was not at the place
where the offences were alleged to have been committed in May, June, July and
August 2011.
19. Further, the Defence submitted that it is unsafe to
find for the Prosecution solely on the evidence of PW4 without corroborative
evidence.
20. Generally in Malaysia there is no specific rule of
law that requires the evidence of a witness to be corroborated except in the
case of the evidence of a child of tender years under section 133A of the
Evidence Act.
21. However, In PR v KU LIP SEE [1981] 1 LNS 155, Federal
Court ruled that the Court can rely on the testimony of the rape victim in
convicting the accused.
......
23. In any event, for the instant case I accepted the evidence
of PW4 that she was raped by the Accused and it was corroborated by the medical evidence.
The DNA report which concluded positively that the
Accused Is the biological father of the infant delivered by PW4 had indeed
corroborated PW4 testimonies. PW4 even cried, while giving her evidence and
this is also part of corroboration.
24. In KU LIP SEE v PP [1982] 1 MLJ 194 , the Accused was
convicted on a charge of rape, the Trial Judge accepted the evidence of the
victim that she was raped was corroborated by the medical evidence.
Applying the above cases, the evidence of PW4 that she
was raped is corroborated by the DNA report. Apart from that PW4 positively
identified the Accused as the person who had raped
her. PW4 without any hesitation pointed at the Accused
when she was asked to identify the person who raped her.
25. Furthermore, there was no reason to disregard the
testimonies of PW4. I am satisfied that she is the witness of truth and
credible witness after having had the opportunity of observing her demeanour in
court.
Mindful of KU LIP SEE V PP [supra] and SHAHMIRUL BIN
SALLEH v PR [supra], I find that it is safe to convict the Accused in this case
based on the testimonies of PW4 as well as the testimonies of the Prosecution's
witnesses including the medical evidence tendered in Court.
26. Having had the privilege of listening to the evidence
of PW4 and the other prosecution witnesses and having had the opportunity of observing their demeanour in
court, DW1 did not come across to me as a credible witness.
I therefore do not consider DW1 evidence to be of any
value in determining whether the Accused has successfully cast any reasonable
doubt to the Prosecution's case.
27. "Reasonable doubt" had been defined in the
case of PR v SAIMIN (1971) 2 MLJ as follows: ...
28. In the present case, I have warned myself of the
danger of convicting on uncorroborated evidence and I was ready to convict the
Accused as he had failed to rebut the case for the
prosecution as to his guilt and based on the credible and
consistent evidence of the victim.
29. I have given full attention and consideration of the
whole of the evidence led by the Prosecution and the Defence. After having
considered all the evidence to a maximum evaluation, I find that the
Prosecution has proved its case beyond reasonable doubt on the following
conclusions:
i PW4 was raped;
ii PW4 positively identified that the Accused as the
person who had raped her;
iii The Court believed and accepted the testimonies of
PW4 that the Accused had sexual Intercourse with PW4;
iv that PW4 was under 16 years old at that material time;
v PW4 is a credible witness and she is the witness of
truth;
vi PW4's evidence that she was raped was corroborated by
medical evidence. The DNA report confirmed that the Accused is the Biological
father of the infant which was delivered by PW4 on 05.02.2012;
vii PW4's consent or otherwise was immaterial as she was
underage at that material time;
viii PW4's evidence that it was the accused who raped her
was believed and accepted;
ix the Prosecution had proven the elements of the charge
beyond reasonable doubt;
x The explanation by the Accused had not raised a
reasonable doubt to the Prosecution's case;
xi The defence had failed to discredit the truthfulness
of PW4 of being a victim of rape by the Accused;
xii The Prosecution's witnesses are credible witness and
they are the witness of truth. The Defence had failed to dislodge the
truthfulness of the evidence of the Prosecution's witnesses.
30. Based on the abovementioned conclusions, the only
verdict I can arrive at in respect of the 4 charges against the Accused, is a
verdict of guilty. I am also satisfied that the accused failed to raise any
reasonable doubt in my mind as to his guilt.
...... "
[50] We observed that having briefly summarised the
testimony of PW4, the Trial Judge stated in the grounds of decision that:
(a) the testimony of PW4 was consistent despite vigorous
cross examination over a few days;
(b) he had no hesitation to agree with the prosecution
that to say PW4 was making up the story was wholly unacceptable;
(c) he was satisfied the element of penetration was
sufficiently established;
(d) agreed inconsistencies in the testimony of PW4 was
reasonable and did not affect the prosecution case;
(e) the Appellant shifted blame on PW4;
(f) Dr. Nurulhuda, the O&G Specialist (PW8) had
clarified that the conception without intercourse is not easy as it needs
sufficient medical equipment;
(g) in any event, for the instant case he accepted the
evidence of PW4 that she was raped by the Appellant and it was corroborated by
the medical evidence;
(h) the fact PW4 cried while giving evidence was also
part of corroboration;
(i) satisfied that PW4 was a witness of truth and was a
credible witness after having had the opportunity of observing her demeanour in
court and there was no reason to disregard
her testimony;
(j) having had the opportunity of observing his demeanour
in court, DW1 did not come across to him as a credible witness, therefore did
not consider DW1 evidence to be of any value in determining whether the
Appellant had successfully cast any reasonable doubt on the prosecution case;
(k) he had warned myself of the danger of convicting on
uncorroborated evidence and was ready to convict the Appellant as he had failed
to rebut the case for the prosecution as to his guilt and based on the credible
and consistent evidence of the victim.
[51] From that the Trial Judge made the findings set out
in paragraph 29 of the Grounds of Decision.
[52] We bore in mind that there were fundamentally two
versions before the Trial Court: that of PW4 that she was raped on 4 occasions,
and that of the Appellant that there was no penile penetration and that
penetration was only by PW4's fingers. As can be seen from the
Grounds of Decision, the Trial Judge was satisfied as to
the credibility of PW4 as a witness, that there was corroborative medical
evidence, and having warned himself of convicting upon uncorroborated evidence
he was ready to convict the Appellant because the Appellant had failed to rebut
the case for the prosecution as to his guilt and based on the credible and consistent
evidence of the victim.
[53] The Grounds of Decision, though replete with the
legal terms and phrases, was somewhat disjointed and disconnected as to appear
muddled or incoherent in its reasoning. We observed that:
(a) Though the Trial Judge had said there was
corroboration, he stated he had warned himself of the danger of convicting
without corroboration;
(b) Having said so, he said it was because the Appellant
had failed to rebut the case for the prosecution as to his guilt and based on
the credible and consistent evidence of the victim.
54] Reading the Grounds of Decision, it became evident
the Trial Judge had found from the audio visual advantage of a trial judge
that:
(a) PW4 was credible and therefore accepted all of her
testimony; and
(b) having had the opportunity of observing the
Appellant’s demeanour as DW1 in court, the Appellant did not come across to him
as a credible witness, therefore did not consider the Appellant's evidence to
be of any value in determining whether the Appellant had successfully cast
any reasonable doubt on the prosecution case.
[55] The case that comes to mind is Mohamad Radhi Bin
Yaakob v Public Prosecutor [1991] 3 MLJ 169 SC where it was held that even
though a judge does not accept or believe the accused's explanation, the
accused must not be convicted until the court is satisfied for sufficient
reason that such explanation does not cast a reasonable doubt on the
prosecution case. The reasoning, confined to acceptance of credibility and
warning as to danger of convicting without corroboration, fails the test in
Mohamad Radhi Bin Yaakob v Public Prosecutor (supra) which requires a
consideration whether the Appellant's explanation did or did not cast a
reasonable doubt. It applies –
(a) an objective evaluation as to whether a reasonable
doubt was raised, as opposed to
(b) believing and accepting as true and correct the
testimony of one witness against another upon a subjective finding of
credibility based on observation of demeanour and dismissing the opposing version.
[56] The finding of credibility of PW4 necessarily
results from the audiovisual advantage the Trial Judge had of the demeanour of
PW4. The record contains no record as to the demeanour of the PW4. Section 271
of the Criminal Procedure Code provides:
271. Remarks as to demeanour of witness
A presiding
Magistrate recording the evidence of a witness may, at the conclusion of the
evidence and at the foot of the notes of it, record such remarks, if any, as he thinks material
respecting the demeanour of the witness while under examination.
[57] In Tara Singh & Ors. v Public Prosecutor [1948]
1 LNS, [1949] MLJ 88, Spenser-Wilkinson J in the Court of Criminal Appeal,
said:
“It has been laid down, however, that ‘an impression as
to the demeanour of a witness ought not to be adopted by a trial judge without
testing it against the whole of the evidence of the witness in question’ [See
judgment of Lord Greene, MR in Yuill v Yuill [1945] 1 All ER 183]. This was a
civil case and the principle applies with even greater force to criminal cases,
especially where, as usually happens in this country, the witness is a
non-European giving evidence in his native tongue through interpretation.”
[58] This was followed by Yusof Abdul Rashid J. in Public
Prosecutor v Ku Lip See [1980] 1 LNS 166.
[59] The impression as to demeanour from the audio-visual
advantage is something not easily capable of being scrutinized directly not
only on appeal, but such impression may be affected from any delay made in
assessing and noting that demeanour. Hence, section 271 of the Criminal
Procedure Code provides for it to be noted at the end of the notes as to that
witness’s testimony. Without such a contemporaneous note at the end of the
notes of a witness as to demeanour as a basis or reason, references to
demeanour to support a decision suffers from the impression of likelihood it is
more of excuse to support the decision.
[60] In the circumstances, the finding as to credibility
of PW4 based upon demeanour from the audio-visual advantage of the Trial Judge
is flawed and unsafe.
[61] In this case, Justina Lau Sie Wei (PW1), the Medical
Officer in the Paediatric Department, testified the child was born at 34-35
weeks gestation. Dr. Nurulhuda (PW8) reported it was about 32 weeks gestation. It has a direct bearing as to
which incident in the four charges could have resulted in the conception. The
Appellant alleged penetration was not by penile but by fingers penetration. The
possibility of conception by insemination by delivery of semen by fingers was
put to PW1, a Medical Officer testifying for the first time. Her answer was she
had not heard of any case report of fertilization taking place other than by
sexual intercourse. In her reply, she remarked pertinently that "... If it
can be done so easily then we do not need artificial fertilization." Given
her experience her answer that she had not heard as such is not definitive as
to whether it could happen. We took it she meant that fertilization taking
place other than by sexual intercourse needs to be done in a conducive
environment at the specialised medical facilities.
[62] Dr. Nurulhuda (PW8) testified in cross-examination:
Q15: In a normal case where the woman [is] fertile and
[the] man is fertile, conception can occur as long as semen b[e]aring the
spermatozoa is introduced to vagina?
A: Yes, that possible.
Q16: You don't actually need to supervise medical process
as in the intrauterine insemination if they are fertile?
A: Possible.
[63] In re-examination, PW8 testified:
Q5. Can the conception occur if the sperm is placed just
at the mouth of the vagina?
A: No, it must be placed within the vagina at the very
least.
Q6: How about the percentage of success in intrauterine
insemination?
A: Roughly between 4% to 16 %. Very low.
Q7: Can this process being done without medical
facilities?
A: No.
Q8: Refer to Q8 A No. 11 of cross-examination. Can you
confirm that if a freshly ejaculated semen laden with spermatozoa is introduced
to the vagina by the finger inserted, could conception occur?
A: It is possible.
DPP: No further question.
[64] There was no other conclusion that the DPP accepted
the prosecution witness’s answer to re-examination question Q8. Even if the
public wisdom is that other than penile penetration and introduction of semen,
fertilisation occurs only by medically supervised insemination, there was
confirmation by the prosecution’s own expert witness, PW8, in a direct answer
in re-examination and accepted by the DPP, that if a freshly ejaculated semen
laden with spermatozoa is introduced to the vagina by the finger inserted
conception could occur.
[65] Subsequent to this, no further evidence was adduced
by the prosecution that PW8 was incorrect. We puzzled over these unusual
testimony and what it means. Evidently, it means that even if fertilization is
even less likely to be successful by means of delivery of fresh semen
by fingers compared to medically supervised insemination,
it nevertheless was possible.
[66] To determine whether a reasonable doubt was raised,
we sought assistance from established caselaw authority. What constitutes a
reasonable doubt in an objective evaluation is a precise concept. The Federal
Court (see State Public Service Commission, Sarawak v Sarjit Singh Khaira [200]
4 CLJ 248 FC; Tan Boon Kean v PP [1995] 4 CLJ 456 FC; Dato Seri Anwar Ibrahim v
PP [2015] 2 CLJ 145 FC; PP v Azilah Hadri & Anor [2015] 1 CLJ 579 FC) and
the Court of Appeal and High Courts had time and again found assistance from
Miller v Minister of Pensions [1947] 2 All ER 372 where Denning J.
(as he then was), explained the proof beyond reasonable
doubt standard as follows:
“Proof beyond reasonable doubt does not mean proof beyond
the shadow of doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the evidence is so
strong against a man as to leave only a remote possibility in his favour which
can be
dismissed with the sentence “of course it is possible,
but not in the least probable” the case is proved beyond reasonable doubt, but
nothing short of that will suffice.”
[67] We bear in mind PW8 confirmed in re-examination that
fertilisation is possible by the delivery of fresh semen by fingers. At that
point, although fertilization by such means was confirmed possible by PW8, the
delivery of fresh semen by fingers was purely a supposition or proposed
explanation. If there was no testimony as to delivery by fingers, the ground
would remain a supposition and we would have dismissed the appeal on the ground
no reasonable doubt was raised.
[68] But when the Appellant testified as to fingers
having been used to rub and introduce freshly ejaculated semen, possibility by
such means in this case was no longer mere supposition, because there was
evidence to be considered as to whether it raised a reasonable doubt.
[69] Similarly, the version of the Appellant when he
testified, if on its own, without the confirmation of PW8 that fertilization by
such means was possible, would appear in our minds to be a supposition or
proposed explanation, a fanciful possibility to deflect the course of justice.
If there was nothing more, it would fail, and we would dismiss the appeal.
[70] The Appellant as DW1 testified that PW4 asked for
sexual intercourse with him but though he touched her vagina, he did not have
intercourse because her vagina was too small, that PW4 held his organ until he ejaculated. His hand or finger had
semen after he ejaculated, and while he continued to touch her vagina she
touched his semen, and they both inserted their fingers into her vagina.
[71] We examined the following cross-examination:
Q10. And the chemist report said that you are the
biological father of the baby delivered by Jati Anak Buan, what could you say?
A. I disagree because I did not have sexual intercourse
with Jati.
[72] In the light of the conclusiveness of the DNA that
he was the biological father, we can only conclude that it was the answer of an
ordinary person who did not expect that use of fingers could result in
fertilization and conception. The facts on the record is that matter came to
PW3’s attention only when the child was born. Even so, it was PW3 and not PW4
who lodged the Police Report, and that Police Report was made one month after
the birth of the child. We concluded only it was the unexpected birth of the
child that brought the matter to light. We dismissed from our minds any
speculation as to what was going on.
[73] Though the Appellant’s version appeared to be
shifting blame to PW4, we do not think the comment is necessary. It distracts
from the process of a maximum evaluation on an objective basis.
[74] We remained guided by the Supreme Court in Mohamad
Radhi Bin Yaakob v Public Prosecutor (supra) where it was held:
“We are of the view that whenever a criminal case is
decided on the basis of the truth of the prosecution case as against the
falsity of the defence story, a trial Judge must in accordance with the
principle laid down in Mat v PP [1963] 1 LNS 82 go one step further before
convicting the accused by giving due consideration as to why the defence story
though could not be believed did not raise a reasonable doubt on the
prosecution case. Thus, even though a Judge does not accept or believe the
accused explanation, the accused must not be convicted until the Court is
satisfied for sufficient reason that such explanation does not cast a
reasonable doubt on the prosecution case.”
[75] Upon a maximum evaluation of the whole of the
evidence before the Court, the supposition that fertilization occurred in this
case by the introduction or delivery of semen by fingers, was no longer “but
not in the least probable”, but became a reasonable doubt because to the
testimony of PW8, there was the testimony of the Appellant, properly having
been laid out in cross-examination of the medical officers, that fingers had
been so used. The confirmation by PW8 made the challenged but unshaken
testimony of DW1 just is at the very least bit probable as to raise a
reasonable doubt. The sole basis that gave rise to a reasonable doubt has
nothing to do with belief in the version of DW1, but that PW8’s testimony is
that DW1’s version was possible.
Concluding Remarks
[76] Reviewing the case as a whole, it was clearly a case
that the defence of the Appellant was put to the prosecution witnesses. The
prosecution had notice of the defence. A material prosecution witness PW8
testified that fertilisation of ova by introduction of fresh semen by fingers
was possible. No steps were taken to call a more experienced doctor to give
evidence to explain away the testimony of PW8. There is no excuse on the record
for not obtaining expert evidence that could be called to counter it. The Court
is left with one inference, that the prosecution accepted the confirmation by
PW8 and the result must follow.
[77] Perhaps it is never too late to observe that since
the burden at all times remain upon the prosecution to prove the offence as
charged to the standard of beyond reasonable doubt, no charge should be filed
for prosecution unless and until the prosecution is certain it could do so.
There is after all no statute of limitation to crime.
[78] Finally, rape is even more of an outrage if it
results in conception.
Causing conception on a woman without her consent, or a
minor who cannot consent, is an assault no less than rape resulting in conception.
As we mentioned orally during submissions, steps ought to
be taken quickly to add to the definition of rape.
[79] We did not think it appropriate to consider
convicting the Appellant on lesser charges such as of indecent assault lest it
lends the notion and the Courts stands accused that the Courts condone such
lesser charges as sufficient charge and punishment, and detract from the
urgency of introducing necessary legislation. No doubt the prosecution felt
compelled to charge for rapes with no alternative charges for the very same
reason that lesser charges are wholly inadequate.
[80] For the reasons above, we allowed the appeal and set
aside the conviction and sentence passed by the Trial Court as varied as to the
order of compensation upon appeal to the High Court.
Signed
(DATUK ABDUL WAHAB PATAIL)
Judge
Court of Appeal of Malaysia
No comments:
Post a Comment