DALAM MAHKAMAH PERSEKUTUAN
( BIDANGKUASA
RAYUAN )
RAYUAN JENAYAH NO
05-66-2002 (C)
BETWEEN
FRANCIS ANTONYSAMY
APPELLANT
AND
PUBLIC PROSECUTOR RESPONDENT
( Dalam Mahkamah
Rayuan
Rayuan Jenayah No
C-05-87-1996
Between
Francis Antonysamy
Appellant
And
Public Prosecutor Respondent
Dalam Mahkamah
Tinggi
Perbicaraan Jenayah
No 45-3-1995
Between
Public Prosecutor
And
Francis Antonysamy )
Coram
AHMAD FAIRUZ BIN SHEIKH ABDUL HALIM,
CJ
PAJAN SINGH GILL, FCJ
AUGUSTINE PAUL, JCA
JUDGMENT OF THE COURT
The accused was charged with an
offence of murder under section 302 of the Penal Code in the High Court at
Temerloh. He was found guilty. Upon his conviction the mandatory death
penalty was imposed. His appeal against
the conviction and sentence was dismissed by the Court of Appeal. He has now appealed to this Court.
The deceased, Ali Ahmmed bin Mohammed
Ullah, was known to the accused and one Meganathan a/l Mariapen (PW4), the
principal witness for the prosecution.
The investigation in this case commenced with the discovery of the
headless body of the deceased in Ladang Kim Swee Leong by Gopal a/l Ammaswasai
(PW3) on
“Semasa saya nampak OKT pukul simati
di leher saya rasa takut. Semasa
menunggu OKT balik ke kereta selepas mengheret simati saya merasa takut. Saya tidak lari walaupun takut. Saya takut kalau lari mungkin kena pukul oleh
OKT.”
The
deceased then fell down and the accused, carrying a parang with him, dragged
him away. The accused then returned and
told PW4 that he had lost the parang. He
asked PW4 to drive him to a temple nearby to get another parang which they did. PW4 was still frightened. They then returned to the place where the
deceased’s body had been left. The
accused asked PW4 to remain in the car and went to the place where the body of
the deceased was lying. PW4 heard the
sound of hacking. He was
frightened. Soon after that the accused
returned to the car with a bundle together with the parang, the rattan cane and
the shirt and trousers of the deceased.
He placed them in the boot of the car.
They then continued with their journey with two stops on the way. The first stop was somewhere along Jalan
Maran where the accused threw the parang, the rattan cane and the shirt and
trousers into a swamp by the side of the road.
At the next stop the accused took out the bundle which was in a black
plastic container and concealed it under some oil palm fronds. They then went back home and slept. On
“OKT ada mengatakan ia telah
tanamkan kepala simati. Saya beritahu
OKT saya merasa takut. Ia beritahu saya
jangan beritahu sesiapa termasuk polis.
Beliau kata semua perkara ini dilakukan oleh beliau. Saya jangan risau. Jika ditangkap beliaulah yang
bertanggungjawab.”
With
regard to his knowledge of the intention of the accused in killing the deceased
PW4 said in his cross-examination:
“Pada 19.4.94 pada atau sebelum
simati menumpang kereta saya OKT tidak ada mengatakan ia ada niat untuk
membunuh simati. Pada bila-bila masa pun
OKT tidak ada mengatakan ia ada niat untuk membunuh simati.”
On the
23rd or 24th August 1994 PW4 gave a statement to the
police. On
“Tiada bantahan bagi
maklumat-maklumat ini dikemukakan.”
On
Learned counsel for the accused
advanced several arguments before us in support of the appeal. They relate to
(a)
the admissibility of the cautioned statement of the accused,
(b)
the admissibility of the information supplied by the accused
under section 27 of the Evidence Act 1950 (“section 27”)
(c)
the evidentiary value of the testimony of PW4
(d)
the standard of proof applied by the learned High Court
Judge (“the learned Judge”) at the end of the case
We will now
consider the issues raised by learned counsel.
(a) The
admissibility of the cautioned statement of the accused
Learned counsel raised two objections
on this issue. Firstly, he contended
that before a cautioned statement is admitted there must be evidence of the
words of the caution that was administered and that it is not sufficient merely
to state that it had been read. Secondly,
with regard to the question of the voluntariness of the cautioned statement
learned counsel said that the learned Judge was wrong in saying that the
accused must adduce evidence on his allegation of being assaulted after his
arrest on the balance of probabilities thereby placing a burden on the
accused. Accordingly, he said, the
cautioned statement must be ruled as being inadmissible. In reply the learned Deputy Public Prosecutor
said that the actual words of the caution that was administered are as stated
in the cautioned statement itself. He
added that no evidence was adduced by the prosecution as to what had happened
from the time the accused was arrested on
(i)
Whether there must be evidence of the actual words of the caution
that was administered
(ii)
Manner of proving voluntariness
(i) Whether
there must be evidence of the actual words of the caution that was administered
The evidence of the recording officer
in respect of the caution that he administered is as follows:
“Kemudian saya mulakan rakaman
percakapan dengan membacakan amaran di bawah seksyen 113 KAJ yang diterangkan
dan ditunjukkan kepada OKT melalui L/Kpl Chandra Sekaran.”
It is first
necessary to set out the relevant part of section 113 of the Criminal Procedure
Code (“section 113”) which deals with the caution. It reads as follows:
“(1) …
… …
Provided that –
(a) no
such statement shall be admissible or used as aforesaid -
(i) … … …
(ii) in the case of a statement made by the
person after his arrest, unless the Court is satisfied that a caution was
administered to him in the following words or words to the like effect:
‘It is my duty to warn you that you
are not obliged to say anything or to answer any question, but anything you
say, whether in answer to a question or not, may be given in evidence’.”
It must
be observed that the need to administer the caution as required by section
113(1)(a)(ii) is an explicit endorsement and preservation of the privilege
against self-incrimination as it gives the accused the option to remain silent. It is perhaps to ensure that this privilege
is not diluted in any way that section 113(1)(a)(ii) provides that a statement
made by a person after his arrest shall not be admissible in evidence “ … … …
unless the Court is satisfied that a caution was administered to him in the
following words or words to the like effect … … … .” It can therefore be seen that the satisfaction
of the Court on the administration of the caution goes to the very root of the
admissibility of a statement that had been made. What requires consideration is whether a mere
reading of the caution will amount to the Court being “satisfied” that it had
been administered. The word “satisfied”
has been understood to mean, free from anxiety, doubt, perplexity, suspense or
uncertainty (Aiyar’s Judicial Dictionary 11th
Ed). Webster’s
New World Dictionary 3rd Ed defines the word “satisfy” as:
“to fulfill or answer the
requirements or conditions of (something);
to comply with (rules, standards, or obligations); to be free from doubt or anxiety, convince.”
Bindra’s
Interpretation of Statutes 7th
Ed says at p 1113:
“ ‘Satisfied’ should be read as
meaning ‘reasonably satisfied’. It
cannot import an arbitrary or irrational state of being satisfied. Satisfaction must be honest, careful and deliberate,
arrived after exercising due care and caution (In re V Venkataramas AIR 1949 Mad 529; Liversidge
v Anderson (1942) AC 206, 271; Ratam Roy v State of Bihar AIR 1950 Pat
332, 345). The question of satisfaction
is, however, a question of fact and it is a subjective consideration and not an
objective consideration (In re Jayantilal
AIR 1949 Bom 319, 333 (FB)).”
Thus as
Syed Agil Barakbah J (as he then was) said in Island and Peninsular Development Bhd & Anor v Legal Adviser, Kedah
& Ors (1973) 2 MLJ 71 in construing the word “satisfied” in section 380(1)(a)
of the National Land Code at p 72:
“The word ‘satisfy’ means to furnish
with adequate proof or to convince.
Construing it in its ordinary and natural meaning, the duty lies with
the applicants to satisfy the registrar by furnishing him with adequate proof
that the registered documents of title have been registered in the wrong
names.”
It
follows that in the passage just referred to a bare statement by the applicants
that the registered documents of title have been registered in the wrong names
is not sufficient. The registrar will be
“satisfied” only if he is convinced of the allegation by adequate proof that
has been furnished to him by the applicants in order to avoid a satisfaction
which is arbitrary or irrational.
The logical corollary is that evidence that the caution
under section 113 was merely read will deprive the Court of the opportunity to
exercise its discretion in order to determine whether the caution that was
administered is as prescribed or to the like effect. It will amount to the Court accepting the
conclusion of the witness that the prescribed caution had been administered when
the conclusion is one that must be arrived at by the Court itself based on
evidence that has been adduced. The
Court can be “satisfied” that the caution was administered as required only
with adequate proof of the words used. This
can only be done if there has been evidence of the actual words used by the
recording officer. In that event the
Court would be in a position to determine whether the caution that was
administered is as prescribed or to the like effect or is something that is
different. Oral evidence of the words
used is particularly significant in this case as it is subject to appellate
review. There is no such oral evidence
though the words used appear in the cautioned statement. The resultant matter for consideration is
whether the cautioned statement can be used as evidence of the words of the
caution that was administered. The
relevant part of the cautioned statement reads as follows:
“Sebelum saya merakamkan percakapan
tertuduh ini, terlebih dahulu saya memberi amaran kepada beliau mengikut sek
113 KAJ seperti berikut ‘Adalah menjadi kewajipan saya untuk memberi amaran
kepada kamu bahawa kamu tidaklah diwajibkan menyatakan sesuatu atau menjawab
apa-apa soalan tetapi apa apa jua yang kamu nyatakan sama ada sebagai menjawab
sesuatu soalan atau tidak, boleh diberi sebagai keterangan’.”
The
contents of a cautioned statement are substantive evidence of whatever the
accused had said. As the passage just
reproduced is a statement of the recording officer it is not substantive
evidence. It can only be used to
corroborate his evidence under section 157 of the Evidence Act 1950. Corroborative evidence is only admissible to
support testimony that has already been given.
It is not admissible to supplement such testimony. In Yap
Ee Kong & Anor v PP (1981) 1 MLJ 144 this Court adopted Director or Public Prosecution v Hester (1973)
AC 296 where it was held that the purpose of corroboration is not to give
validity or credence to evidence which is deficient or suspect or incredible
but only to confirm and support that which as evidence is sufficient and
satisfactory and credible. It was
further held that if the evidence to be corroborated is found to be uninspiring
and unacceptable then corroboration would be futile and unnecessary. It follows that in the absence of any
evidence by the recording officer of the actual words of the caution that was
administered evidence of such words in the cautioned statement cannot be used
to supplement the deficient evidence. In
any event he did not say that the caution that he read is as recorded in the
cautioned statement.
The result is that there is no
evidence before the Court in order to be “satisfied” whether the caution that
was administered is as prescribed or contain words to the like effect.
(ii) Manner
of proving voluntariness
It will be recalled that the accused
was arrested on
“With regard to the accused’s
assertion that he was assaulted while under remand, I have this to say while
the prosecution is under obligation to prove beyond reasonable doubt that 1/D
43 was given by the accused free of any kind of coercion inducement or
promise. The defence in asserting that
the accused was assaulted, must come up with some form of evidence to show on
the balance of probabilities that what was alleged could have occurred. This, the defence did not do. The assertion remains just a bare
allegation.”
While
it has been correctly recognised by the learned Judge that the prosecution must
prove beyond reasonable doubt that a cautioned statement was given voluntarily
it is an error of law to say that the defence must prove an allegation of
assault on a balance of probabilities.
In Juraimi bin Husin v PP (1998)
1 MLJ 537 it was held that the only burden that rests upon an accused is to
place before the judge such facts as raise a well-grounded suspicion that the
statement was made involuntarily. This
is only an evidential burden (see Aziz
bin Muhammad Din v PP (1996) 5 MLJ 473).
It is also an error of law to suggest that the burden on the prosecution
is only to negate allegations that have been raised by the defence. In order to discharge the legal burden that
it carries the prosecution must call its material witnesses in the course of
its case to establish that the cautioned statement was given voluntarily. In this regard it is pertinent to refer to
the judgment of the High Court in PP v
Kalaiselvan (2001) 2 MLJ 157 at pp 171 – 172:
“The general rule is that the prosecution
must adduce sufficient evidence of the facts to show that a cautioned statement
was obtained voluntarily in order to discharge the legal burden that it
bears. In Boudreau v The King (1949) 94 CCC 1 it was held that all the
surrounding circumstances must be investigated and, if upon their review the
court is not satisfied of the voluntary nature of the admission, the statement
will be rejected. Thus all persons who
had anything to do with the accused during the period before the statement was
made must be called as witnesses.
Accordingly, as Dickson J said in Erven
v the Queen (1979) 92 DLR (3d) 507 at p 519 the witnesses who should
normally be called would be:
‘ … … … the police officer to whom
the statement was made or given, and any other police officers who might have
been in a position to threaten or to offer hope of advantage to the
accused. These witnesses testify
affirmatively to statements made and to the absence of threat or promise.’
Thus the Singapore High Court in PP v Tan Boon Tat (1990) 2 MLJ 466
examined at p 471:
‘ … … … the evidence of the events
that occurred between the time of the arrest of the accused and the time when
the statement was recorded to see whether any inducement, threat or promise was
made to the accused which caused him to make the statement which was made.’
Similarly in Lim Sing Hiaw v PP (1965) 1 MLJ 85 the Federal Court took exception
to the fact that (at p 89):
‘ … … … no attempt was made to call
any police or army officer who could say what happened to the appellant during
the three days he was in custody prior to making his statement to Inspector
Lingam.’
Where a witness is considered
material in order to establish the voluntariness of the statement the failure
to call him is fatal. In this regard Duff
CJC in speaking for the Supreme Court of Canada in Thiffault v The King (1933) 60 CCC 97 said at p 103:
‘Where such a statement is elicited
in the presence of several officers the statement ought, as a rule, not to be
admitted unless (in the absence of some adequate explanation of their absence)
those who were present are produced by the Crown as witnesses … and, where the
statement professes to give the substance of a report of oral answers (given to
questions) … ought not to be admitted … unless the person who is responsible
for its compilation is (here again in the absence of some adequate explanation
of his absence) called as a witness.’
Where an important witness is not
available to give evidence his absence must be adequately explained. In commenting on what is an adequate
explanation PK McWilliams in his book Canadian
Criminal Evidence (1988) (3rd Ed) says at paras 15 – 80:
‘If it means that the witness was
only incidentally involved with the accused that may be reasonable, but if it
is simply that the witness is, for example, away moose hunting, then it is
not. In R v Botfield (1973) 28 CCC (2d) 472 (BCCA) the fact that a store
detective was ill in hospital was rejected as being an inadequate explanation.’
I must add that even though the
absence of a material witness has been adequately explained thereby precluding
an adverse inference from being drawn against the prosecution, yet the failure
to produce the witness to testify may result in the prosecution not being able
to discharge its burden if the testimony of that witness is essential for the
unfolding of its case. A case cannot be
said to have been proved simply by explaining away the absence of a witness
whose evidence is crucial. Be that as it
may, there is no burden upon the prosecution to call everyone who had contact
with the accused however peripheral or insignificant his role (see R v Haughton (No 2) (1982) 38 OR (2d)
496. Thus in R v Settee (1974) 22 CCC (2d) 193 (Sask CA) it was held that it was
not necessary to call witnesses who had escorted the prisoner and did not take
part in the interrogation.”
And at
p 173:
“The prosecution must therefore call
its material witnesses in the course of its case as I explained earlier. The argument advanced by the learned deputy
public prosecutor is also contrary to the principles governing the calling of
evidence in rebuttal which is allowed only in very special or exceptional
circumstances (see PP v Chia Leong Foo
(2000) 6 MLJ 705). The duty of the
prosecution is to present completely the evidence upon which it relies to
discharge its burden in the course of its case and not split its case by
reserving some evidence to be called in rebuttal.”
And
further at p 174:
“The prosecution cannot therefore
call evidence to rebut matters that could have been foreseen or if such
evidence was itself relevant to prove its case.
Where, however, the accused in his evidence makes allegations against
persons considered by the prosecution to be not material in establishing the
voluntariness of the statement by virtue of them being of marginal, minimal or
doubtful relevance they may be called to give evidence in rebuttal. In Tan
Too Kia v PP (1980) 2 MLJ 187 where the Federal Court commented on the
failure by the prosecution to call evidence in rebuttal against whom the
accused had made allegations must therefore be understood in that light. The prosecution cannot therefore withhold
material evidence in its possession for the purpose of rebutting allegations
raised by the accused.”
It is
therefore clear that the duty of the prosecution is to present completely the
evidence upon which it relies to discharge its burden in the course of its case
and not split its case by reserving some evidence to be called in
rebuttal. The prosecution cannot
therefore withhold material evidence in its possession for the purpose of
rebutting allegations raised by the accused.
Thus the prosecution ought to have called witnesses to testify on
matters that transpired from the time of arrest of the accused till he gave the
cautioned statement as it is relevant.
Failure to do so only means that the prosecution has not fully
discharged the legal burden that it has to satisfy.
In the circumstances it is our view that
the cautioned statement made by the accused is not admissible as there is no
evidence of the actual words of the caution that was administered and as the
prosecution has failed to call material witnesses to establish that the
statement was made voluntarily.
(b) The
admissibility of the information supplied by the accused under section 27
Learned counsel conceded that no
objection was taken during the trial to the admissibility of the information
supplied by the accused to the police under section 27. However, he said that notwithstanding the
fact that they were admitted without objection by the defence the fact remains
that the information supplied is involuntary and on the authority of Md Desa bin Hashim v PP (1995) 3 MLJ 350
and Goi Ching Ang v PP (1999) 1 MLJ
507 they are inadmissible; and
inadmissible evidence remains inadmissible.
He added that in order for evidence to be admissible under section 27
there must also be compliance with section 112(2) (3) and (4) of the Criminal
Procedure Code (“section 112”) which read as follows:
“(2) Such
person shall be bound to answer all questions relating to such case put to him
by that officer:
Provided that such person may refuse
to answer any question the answer to which would have a tendency to expose him
to a criminal charge or penalty or forfeiture.
(3) A
person making a statement under this section shall be legally bound to state
the truth, whether or not such statement is made wholly or partly in answer to
questions.
(4) A
police officer examining a person under subsection (1) shall first inform that
person of the provisions of subsections (2) and (3).”
In
support he referred to Goi Ching Ang v PP
(1999) 1 MLJ 507 where Chong Siew Fai CJ (
“Moreover, admitting the appellant’s
s 27 information would infringe the principle of the right against
self-incrimination, there being no evidence of s 112(ii), (iii) and (iv) of the
Criminal Procedure Code having been complied with.
In short, since the learned trial
judge in the instant case under appeal had found that the s 27 information of
the appellant was not voluntarily made, it is irrelevant. It was not the appellant’s own statement and
was extracted from him in contravention of the privilege against
self-incrimination and would be unfair to have it admitted against him. The facts and circumstances of the case show
that the s 27 information obtained has an adverse effect on the fairness of the
proceedings so that the learned trial judge ought not to have admitted it.”
Learned
counsel’s objection is thus centred on the need for the requirements of the privilege
against self-incrimination being complied with in order to render admissible
information supplied under section 27.
It must be observed that the privilege against
self-incrimination can be expressly or impliedly abrogated by statute. In commenting on the implied abrogation of
the privilege the Law of Privilege by
McNicol says at p 257:
“More and more often it will be seen
that the courts seem to be finding that the very object of the statute would be
frustrated if the privilege were to apply (Police
Service Board v Morris (1985) 58 ALR 1;
Stergis v Federal Commissioner of
Taxation (1989) 89 ATC 4442 at 4455-7;
Commissioners of Customs and
Excise v Ingram (1948) 1 All ER 927 at 929). This is not to deny that the very object of
the statute would not be frustrated.
Rather it is simply worth noting that the frustration of statutes
appears to have become the yardstick for determining whether there is a clear
manifestation of a legislative intention to abrogate the privilege by necessary
implication.”
There
are various ways in which the privilege against self-incrimination is preserved
by law. They include, inter alia, the right of a person not to answer any
questions as provided by section 112(2), the need for the administration of the
caution under section 113 and the entrenched rationale of the voluntariness
rule as contained in section 24 of the Evidence Act 1950 (“section 24”). In commenting on the relationship between the
latter rule and the privilege against self-incrimination the Law of Privilege by McNicol says at p
288:
“It is argued elsewhere by the
present author that the privilege against self-incrimination is the most
appropriate explanation of the voluntariness rule. In brief, it is argued that the ‘pressure’ or
‘compulsion’ aspect of the privilege against self-incrimination is closely
allied to the ‘inducement’ or ‘oppression’ required for the voluntariness
test. When a court asks whether a
confession is voluntary, it is asking whether there has been any pressure on
the accused to incriminate her or himself.
If a court holds a confession ‘involuntary’ it is stating that there has
been either an inducement or oppressive conduct (or force) which caused the
accused to confess. In other words,
there has been sufficient pressure or compulsion for the privilege against
self-incrimination to have been breached.”
The
object of the voluntariness rule in section 24 is therefore to preserve the
privilege. The resultant critical issue
for determination is whether this privilege also extends to section 27. If this privilege is to be read as a part of section
27 the information supplied under the section must, in the first place, be also
subject to the voluntariness rule in section 24. If it is not so subjected section 27 will not
be governed by the privilege. It has
been established by a long line of authorities that section 27 is independent
and is not subject to the voluntariness rule in section 24. See, for example, Lee Kok Eng v PP (1976) 2 MLJ 125;
Chong Soon Koy v PP (1977) 2
MLJ 78; Chandrasekaran & Ors v PP (1971) 1 MLJ 153 and Wai Chan Leong v PP (1989) 3 MLJ
356. Then came Md Desa bin Hashim v PP (1995) 3 MLJ 350 where it was ruled that in
order for information supplied under section 27 to be admissible it must be voluntary. The law was re-instated to its rightful
position in Goi Ching Ang v PP (1999)
1 MLJ 507. In our opinion it is
illogical to suggest that section 27 is subject to the voluntariness rule in
section 24. If that were to be so the
desired evidence can be admitted under section 24 without there being any need
for section 27. The fact that section 27
has been specifically enacted is therefore a clear indication that it has a
purpose of its own to serve. As it applies
only to a restricted and specified type of evidence as opposed to section 24 it
can only mean that it is an independent provision which is unaffected by section
24, or, for that matter, any other statutory provision regulating the manner of
taking or recording statements from any person.
This is illustrated by the established rule that information relating to
facts discovered in consequence of a confession rendered inadmissible by reason
of being involuntary is still admissible under section 27 (see R v Warickshall (1783) 1 Leach C C
263; R
v Lockhart (1785) 1 Leach 386). Thus
the existence of section 27 on its own without being affected by section 24,
section 113 and section 37A of the Dangerous Drugs Act 1952 was correctly
recognised by this Court in Wai Chan
Leong v PP (1989) 3 MLJ 356. That
would also be the inevitable result of the relationship between section 112 and
section 27. The corollary is that
section 27 is not subject to the voluntariness rule or any other prescribed
mode of recording statements. Even the
passage from Goi Ching Ang v PP (1999)
1 MLJ 507 referred to by learned counsel does not support the stand taken by
him. This Court referred to section 112
in that case not as a condition of admissibility of information under section
27 but as a ground for excluding such evidence in the exercise of the
discretion of the Court. Both are
different concepts. Since voluntariness
is not a condition of admissibility of information supplied under section 27
the privilege against self-incrimination which is manifested in an involuntary
statement or in a statement made in breach of the requirements of section 112
must be deemed to have been impliedly abrogated insofar as section 27 is
concerned. It follows that the argument
of learned counsel that section 27 is subject to the voluntariness rule in
section 24 and the privilege against self-incrimination in section 112 cannot
be sustained.
We agree with Goi Ching Ang v PP (1999) 1 MLJ 507 that information supplied under
section 27 which has been found to be involuntary may be excluded by the Court
in the exercise of its discretion. As
the exclusion of the evidence is discretionary the exercise of the discretion
depends on the facts of each case. This
was explained by the High Court in PP v
Mohd Farid bin Mohd Sukis & Anor (2002) 3 MLJ 401 at pp 413 – 415:
“In making a ruling on the evidence
adduced by both parties, it is first necessary to determine whether Goi Ching Ang v PP, where a s 27
statement was excluded on the ground that it was involuntarily supplied, must be
taken to mean that such statements must be excluded in all cases of
involuntariness. In resolving the
problem that I have posed, it must be remembered that the exclusion of evidence
in the circumstances now under deliberation is a matter of discretion. The exercise of a discretion cannot be
fettered by laying down rules and regulations.
If that is so, it will become a rule of law and cease to be an exercise
of discretion. This has been stressed in
a plethora of local cases. I consider it
sufficient to refer to PP v Sundaravelu (1967)
1 MLJ 79 where Raja Azlan Shah J (as His Highness then was) said at pp 79 – 80:
‘This application brings into review
the provisions of s 310 of the Criminal Procedure Code (Cap 6). It is clear from the provisions of that
section that this court has a discretion whether or not to allow the
application, but to my mind, emphasis is laid on the phrase “in order that
substantial justice may be done in the matter”.
I think the provisions of this section have been well gone into by the
Court of Appeal in Veerasingam’s case
(1958) MLJ 76. There it was said that
the section is one of discretion and no hard and fast rules can be laid down,
otherwise it ceases to be a discretion and becomes a rule of law.’
As I said in Liow Tow Thong & Ors v Pentadbir Tanah Alor Gajah & Ors (1998)
1 MLJ 79 at p 86:
‘It is a principle of long standing
that a body charged with exercising discretion in the making of decisions must
not, by its own act or decision, prevent itself from exercising that discretion
properly (see R v Sevenoaks DC, exp Terry
(1985) 3 All ER 226).’
Evidence cannot therefore be
excluded in the exercise of the court’s discretion by the automatic application
of a predetermined set of rules. In so
saying, I find support in R v Chalkley
and another appeal (1998) 2 All ER 155 where Auld LJ, in dealing with the
admissibility of evidence under s 78 of the Police and Criminal Evidence Act
1984 on the ground of unfairness, said at pp 177 – 178:
‘We also say here, though it is
strictly more relevant to Mr Cassel’s submission about the balancing exercise
undertaken by the judge, that we reject as contrary to the wording of s 78 and
the authorities that any conduct which may be typified as “oppressive”
automatically requires exclusion of evidence obtained thereby. Just as the labelling of conduct as unlawful
does not necessarily affect its character for the purpose, nor does the
application to it of the epithet “oppressive” automatically override the
fundamental test of fairness in admission of evidence. Oppressive conduct, depending on its degree
and/or its actual or possible effect, may or may not affect the fairness of
admitting particular evidence.’
In this regard, I also refer to McDermott v The King (1948) 76 CLR 501
where Dixon J said at p 513:
‘In referring the decision of the
question whether a confessional statement should be rejected at the discretion
of the judge, all that seems to be intended is that he should form a judgment
upon the propriety of the means by which the statement was obtained by
reviewing all the circumstances and considering the fairness of the use made by
the police of their position in relation to the accused.’
In commenting on limits that may be
set in the exercise of the discretion to exclude evidence Latham CJ, Mc
Tierman, Webb and Fullagar JJ said in R v
Lee (1950) 82 CLR 133 at p 151:
‘What is impropriety in police
methods and what would be unfairness in admitting in evidence against an
accused person a statement obtained by improper methods must depend upon the
circumstances of each particular case, and no attempt should be made to define
and thereby to limit the extent or the application of these conceptions.’
It follows that Goi Ching Ang v PP cannot be understood to mean that a s 27
statement must be excluded in all instances where it was supplied
involuntarily. Neither does that case
profess to lay down such a rule. It was
made clear by the Federal Court that it was considering the exclusion of the s
27 statement ‘On the fact of this case … … … ’ (at p 524) and as stated at p
527:
‘ … … … The facts and circumstances
of the case show that the s 27 information obtained has an adverse effect on
the fairness of the proceedings so that the learned trial judge ought not to
have admitted it.’
Therefore, the Federal Court
excluded the s 27 statement on the facts of that case. The rule is therefore not of universal
application. It depends on the facts of
each case. Thus the ratio that can be
gleaned from Goi Ching Ang v PP is
that a court, in considering the exclusion of a s 27 statement on the ground of
involuntariness, must take into account the facts of the case and the degree of
force used. In my opinion, the degree of
involuntariness that can be said to be sufficient to exclude a s 27 statement
in the exercise of the discretion of the court must be balanced against the
fact that involuntariness is not a condition of admissibility of such a
statement. Therefore the circumstances
of involuntariness must indeed be extraordinary in order to exclude a statement
on a ground which, in the first place, does not affect its admissibility in
law. In this case, the defence’s
evidence is that the first accused supplied the information after the police
had agreed not to take any action against the second accused and his wife. If the first accused had the coolness and the
freedom of mind to negotiate with the police before supplying the information,
I am of the view that the force used was not severe enough to warrant the
exclusion of the information. In the
circumstances, I declined to exercise my discretion to exclude the information
supplied by the first accused.”
The
party that is seeking to have evidence excluded in the exercise of the
discretion of the Court has the onus of showing, on the balance of probabilities,
that the discretion should be exercised in its favour. In this regard reference may be made again to
the judgment of the High Court in PP v
Mohd Farid bin Mohd Sukis & Anor (2002) 3 MLJ 401 at pp 412 – 413:
“The Australian courts have held
that the party seeking to have evidence ruled inadmissible in the exercise of
the discretion of the court has the onus of showing, on the balance of
probabilities, that the discretion should be exercised in that way (see R v Lee (1950) 82 CLR 133; Wendo v
R (1964) 109 CLR 559; Cleland v R (1982) 151 CLR 1; Van Der
Meer v R (1988) 62 ALJR 656). As
Kerry Stephens says in his book entitled Voir
Dire Law at p 58:
‘It follows that the party seeking
the exclusion of the evidence must satisfy the court that the circumstances are
such that the court should exercise its discretion in favour of the party
making the application.’
The appropriate way of dealing with
an application of this nature is by way of a trial within a trial (see Smith v R (1957) 97 CLR 100; R v
Bradshaw (1978) 18 SASR 83; R v Rowley (1986) 23 A Crim R 371). However, in R v Dugan (1984) 2 NSWLR 554, Street CJ expressed the view that a
judge, in considering an application of this nature, ‘ … must necessarily act
upon such evidence as is placed before him either in the substantive trial or
on the voir dire, or both’ (at p 559).
In my opinion, the holding of a trial within a trial is a more
appropriate method to be followed. In
support, I refer to Kerry Stephens where he says at p 7:
‘ … if the voir dire procedure is
not adopted, a defendant is placed at a disadvantage because the impugned
statement will not be excluded unless evidence arising during the prosecution case
warrants that action. When a voir dire
is not conducted, an accused is placed in a situation where he or she can only
give evidence during the substantive trial.
… The result obviously places an accused at a serious disadvantage
because had the admissibility of the statement been determined during the
prosecution case it may not have been necessary for the defendant to give
evidence during the trial proper.’
The holding of a trial within a
trial for the purpose under discussion will ensure that all relevant matters to
facilitate the making of a ruling are addressed. If such a course is not followed, material
evidence may be overlooked as the issue will not be in focus. This will place the defence at a
disadvantage. Needless to say, the
evidence in dispute can be excluded based even on material available in the
substantive trial itself on the issue.”
What
therefore remains for consideration is whether the High Court ought to have
excluded the information supplied by the accused under section 27 in the
exercise of its discretion. As stated
earlier the burden of proof on this issue is on the defence. The very evidence that is now being objected
to was admitted by the High Court without any objection from the defence. The police officer to whom the information
was supplied was not cross-examined on this issue when he gave evidence. In the circumstances the evidence of the
accused that he did not supply the information in question has very little
value with the result that there is insufficient material before the Court to
exercise the discretion in favour of the accused.
We pause to add that the accused had supplied information to
the police twice with regard to the burying of the head. The law relating to the admissibility of such
information was considered by the High Court in PP v Hashim bin Hanafi (2002) 4 MLJ 176 at pp 187 – 188:
“The section provides that ‘ … so
much of such information … as relates distinctly to the fact thereby
discovered, may be proved’. It follows
that the information that is admissible must relate distinctly to the fact
discovered. It was made abundantly clear
by the Privy Council Pulukuri Kotayya
& Ors that it is fallacious to treat the ‘fact discovered’ as
equivalent to the object produced; the
fact discovered embraces the place from which the object is produced, and the
knowledge of the accused as to this, and the information given must relate
distinctly to this fact. The discovery
must be the direct cause of the information (see Jaffer Husain Dastagir v State of
‘To constitute “information” under
the section, the information must come from the accused and nobody else.’
If the police have prior knowledge
of the information supplied by the accused, obviously the subsequent discovery
will be based on such prior knowledge and not on that of the accused. It will thus render the information supplied
by the accused inadmissible as it will not be the cause of the discovery. It must be remembered that s 27 is based on
the view that if a fact is actually discovered in consequence of information
given some guarantee is afforded thereby that the information is true, and
accordingly can be safely allowed to be given in evidence (see Pulukuri Kotayya & Ors). It follows that prior knowledge which will
make s 27 inapplicable must be of such a nature that it must be capable on its
own of leading to the discovery of the object.
If it does not have that effect then the cause of the discovery will
still be the information supplied by the accused and not the prior knowledge of
the police. In that event, the
information supplied by the accused will be admissible as the information that
the police have will not amount to prior knowledge. The corollary is that information that the
accused has drugs or has hidden the drugs without any further information on
their exact location will not amount to prior knowledge. In support, I refer to Md Desa bin Hashim v Public Prosecutor (1995) 3 MLJ 350 where Gopal
Sri Ram JCA said at p 360:
‘If an investigating agency has
prior knowledge of the whereabouts of the article that is recovered, then the
section does not apply.’
The ‘whereabouts’ of an article is a
reference to its exact place of location.
In further support, I refer to the Indian Supreme Court case of Aber Raja Khima v State of Saurashtra AIR
1956 SC 217 where it was held that discovery of hidden incriminating articles
said to have been recovered by the accused is inadmissible if the police
already knew where they were hidden. As
s 27 has no application where the investigating agency has prior knowledge of
the whereabouts of the object that is recovered it follows that where the
accused makes more than one statement it is only the first statement that is
admissible; the second is not (see Md Desa bin Hashim). This is because the second statement is a
mere repetition of the first statement of which the police already have
knowledge. However, if the first
statement of the accused is vague and the precise information is received as a
result of a subsequent statement by him, it is the latter that is admissible
(see Vinayak Joshi v The State AIR
1968 Pun 120). This is for the obvious
reason that the first statement, being not precise, is not the cause of
discovery and is therefore not admissible.
When the information contained in the statement of the accused does not
disclose the exact place where the object was kept concealed by him then even
if the object is recovered it cannot be said that it was recovered pursuant to
the information furnished by the accused (see Paramasivan v State 1990 Cr LJ 1491; State v
Ram Ch AIR 1965 Or 175; Orissa v Nursingha 1990 Cr LJ 1676).”
As the
first information supplied in this case with regard to the burying of the head under
section 27 is not specific it is inadmissible together with exhibit P46A which
relates to it. This does not affect the
admissibility of the second statement on the same subject matter.
(c) The
evidentiary value of the testimony of PW4
In concluding that PW4 is an
accomplice the learned Judge said in his Grounds of Judgment:
“Putting aside the accused’s defence
evidence as regards to SP4’s role in the commission of the crime for a moment,
on the prosecution’s own evidence it is manifest that this witness did play
substantial role throughout this fatal encounter. He was not a mere by-stander who concurred in
the commission of the offence but also an accessory before and after the
commission of the criminal act. As such
I have no hesitation in holding that SP4 is an accomplice.”
The
evidence in this case reveals that PW4 had no prior knowledge of the intention
of the accused to commit the crime. He
first knew of it when he saw the accused hitting the deceased at the rear of
the car. Thereafter he assisted the
accused actively in concealing the crime.
The question that arises is whether on these facts he can be termed as
an accomplice. In Davies v Director of Public Prosecutions (1954) 1 All ER 507 it was
held that persons who are particeps criminis in respect of the actual crime
charged, whether as principals or accessories before or after the fact, are
accomplices. In explaining the role
played by these categories of persons the Law
of Evidence by Woodroffe and Amir Ali 16th Ed Vol 4 says at p
3434 - 5:
“A principal of the first degree is
one who actually commits the crime; a
principal of the second degree is a person who is present and assists in the
perpetration of the crime; an accessory
before the fact is one who counsels, incites, connives at, encourages or
procures the commission of a crime;
everyone is an accessory after the fact to a felony who, knowing a
felony to have been committed by another, receives, comforts or assists him in
order to enable him to escape from punishment;
or rescues him from arrest for the felony; or having in custody for the felony,
intentionally and voluntarily suffers him to escape; or apposes his apprehension.”
PW4
neither committed the crime nor did he assist the accused in committing it. Neither did he procure its commission. As he assisted the accused in concealing the
crime he is clearly an accessory after the fact. In commenting on the evidentiary value of the
testimony of such a witness the Court of Appeal said in Harcharan Singh & Anor v PP (2005) 1 CLJ 11 at pp 19 – 20:
“There is some controversy as to
whether an accessory after the fact is an accomplice in the strict sense as he
is not concerned in the original offence for which the accused has been
charged. As Sarkar on Evidence 14th Ed Vol 2 says at pp 1912 – 1913:
‘In the penal laws of this country
ordinarily two classes have been recognised:
Persons who are principals (i.e. directly or indirectly concerned in the
offence) and abettors or instigators (i.e. privy to the offence). The term “accomplice” obviously includes
principals in the first and second degrees as also abettors. An accessory after the fact is one who
knowing a felony to have been committed receives, relieves, comforts, assists,
harbours or maintains a felon. In a case
it was doubted whether an accessory after the fact is an accomplice (R v Chutterdharee, 5 WR Cr 59: see also Nga
Pauk v R, A 1937 R 513) but the Judicial Committee has held that he is (Mahilikilili v R, A 1943, PC 4; 44 Cr LJ 1;
Mahadeo v R, A 1936 PC 242: 40
CWN 1164; see Ismail v R, A 1947 L 220).
An accessory after the fact being not concerned in the original offence
for which the accused is tried, may not in the strict sense come within
“accomplice”, but even in such cases there are exceptions, eg, the possessor of
stolen property soon after theft may be presumed to be the thief (v. ill (a) to
s 114) and he is an accomplice in the case against the thief. All accessories after the fact are not of the
same degree of criminality, as so much depends on the particular facts of each
case. In many cases the question whether
an accessory after the fact is or is not an accomplice in law may assume an
academic form, the principal point to which consideration is applied being
whether corroboration of his evidence is required. Whether an accessory after the fact does or
does not come technically within the category of “accomplice”, he is on the
same footing as an accomplice and his evidence is no better. The presumption of untrustworthiness equally
attaches to his evidence and on the same principle as that of an accomplice,
the sounder rule would be to require corroboration (see Alimuddin v R, 23 C 361 post;
R v Kalu, A 1937 O 259; Shyan
Kumar v R, A 1941 0130; Brijpal v R, A 1936 O 413; Turab v
R, A 1935 0 1; Sundor Lal v R, A 1934 O 315;
Nawab v R, A 1923 L 391; Bahawala
v R, A 1925 L 432; Hayatu v R, A 1929 L 540; Ismail
v R, A 1947 L 220; Ashutosh v S, A 1959 Or 159 and cases
post), except when it can be dispensed with in the special circumstances of a
case. In such cases the real question is
the degree of credit to be attached to the evidence of these witnesses who as
accessories are concerned with the accused in some other offence arising out of
the original offence.’
Strictly speaking an accessory after
the fact cannot be an accomplice as he is not concerned in the commission of
the original offence. In Kuan Ted Fatt v PP (1985) 1 MLJ 211 the
Federal Court did not treat a witness who was present at the time of the
commission of the offence as an accomplice as he had no prior knowledge that
the offender intended to commit the offence charged. However, it can be safely stated that the
question of whether an accessory after the fact is an accomplice is academic as
his evidence must be considered on the same principles as that of an
accomplice. Where he has played an
active role his evidence must be corroborated.
On the other hand if his role has been passive his evidence may be
accepted with the usual corroboration warning.”
On the
facts of this case PW4 played a very active role in his capacity as an
accessory after the fact. His evidence
must therefore be corroborated.
In dealing with the nature of evidence
that can be termed as being corroborative Lord Reading CJ said in R v Baskerville (1916) 2 KB 658 at p
667:
“We hold that evidence in
corroboration must be independent testimony which affects the accused by
connecting or tending to connect him with the crime. In other words, it must be evidence which
implicates him, that is, which confirms in some material particular not only
the evidence that the crime has been committed, but also that the prisoner
committed it.”
It was
further held in that case (at p 667) that the corroboration need not be direct
evidence that the accused committed the crime;
it is sufficient if it is merely circumstantial evidence of his
connection with the crime. In commenting
on the same issue Sarkar on Evidence 15th
Ed Reprint 2004 Vol 2 says at p 2099:
“The corroboration need not be of a
kind which proves the offence against the accused. It is sufficient if it connects the accused
with the crime (Swaminathan v S AIR
1957 SC 340). The corroboration need not
consist of evidence which standing alone would be sufficient to justify the
conviction. All that is required is that
there should be sufficient corroborative evidence to show that the approver is
speaking the truth with regard to the accused whom he seeks to implicate (Bishnupada v R AIR 1945 C 411; Autar
Singh v S AIR 1960 Pu 364; Rameshwar v S AIR 1952 SC 54; see Swaminathan
v S, sup; Ambika v R 35 CWN 1270).”
Of the
information supplied by the accused to the police under section 27 the most
significant one is when he said, “Sinilah tempat saya tanam kepala Ali”
followed by the discovery of the head.
If the information had been merely that “sinilah kepala Ali ditanam” it
would only support the evidence of the commission of the crime as it will
indicate only the accused’s knowledge of the burial of the head. The fact that the information reveals that the
accused had buried the head at the particular spot which was known only to
himself coupled with his pointing out of the parang, the rattan cane, the
trousers of the deceased and the plastic bag used in wrapping the deceased’s
head affect the accused by tending to connect him with the crime. This is enhanced by the admission made by the
accused when he told PW4 not to worry as everything was done by him and if
arrested he will be the person who will be responsible. Ordinarily this admission may not carry much
weight on its own as it is from a witness in the position of PW4. However, on the facts of this case it cannot
be disregarded as it was not subjected to any cross-examination by the accused
nor was it denied or explained by him.
It assumes greater significance when judged together with the
information supplied by the accused that led to the discovery of the objects
and the request by the accused to PW4 not to mention the incident to anyone
including the police. All these have the
cumulative effect of tending to connect the accused to the crime. We are therefore satisfied that there is
sufficient evidence to support the testimony of PW4 not only to show that the
crime had been committed but also that it was the accused who had committed it. The evidence of PW4 can therefore be acted
upon to make out a case against the accused as done by the learned Judge.
(d) The
standard of proof applied by the learned High Court Judge as the end of the
case
The argument that the learned Judge
had applied the wrong standard of proof is based on the last paragraph of his
Grounds of Judgment where he said:
“Having come to this conclusion, I
therefore am of the opinion that the defence had failed, on the balance of
probabilities to cast reasonable doubt, on the prosecution’s case, I therefore
found the accused guilty and convict him of the offence of murder, in
contravention of section 302 Penal Code and sentenced him to death.”
Read in
isolation this passage may appear to portray the impression that the accused
had failed to cast a reasonable doubt on the balance of probabilities in the
case for the prosecution. This would
amount to a wrong burden being placed on the accused. The truth emerges when one reads the earlier
part of the judgment of the learned Judge where he said:
“The prosecution having proved its
case against the accused beyond reasonable doubt, the onus now lies with the
defence to show to the court that on the balance of probabilities he has a
plausible defence.”
The
reference to the standard of proof in the last paragraph of the judgment is
therefore clearly a reference to the burden with regard to the defence of
intoxication.
Upon a consideration of the arguments
advanced before us we are satisfied that the accused was correctly called upon
to enter his defence. His defence was
one of denial that he had committed the offence and that it was PW4 who did
it. The learned Judge had correctly
assessed the defence advanced against the background that it was never put to
the witnesses for the prosecution. It
was accordingly rejected. In dealing
with the defence of intoxication advanced by the accused the learned Judge said:
“On the issue of intoxication there
was no scientific evidence placed before me to support the contention of the
defence.”
Having
said that he considered the conduct of the accused both before and after the
commission of the crime and rejected the defence. In our opinion he was correct in doing
so. Scientific evidence to prove
intoxication can be provided by an analysis of blood and urine samples which
will show the level of alcohol in the body.
However, it must be observed that such results are not conclusive to
determine the degree of intoxication of a person. As Chao Hick Tin JC said in PP v Ramasamy a/l Sebastian (1991) 1 MLJ
75 at p 81:
“In any event, from the evidence of
the experts, the blood alcohol level itself can never be conclusive to
determine the degree of intoxication of the accused. Different people react differently to the
same blood alcohol level. It makes a
great difference whether the person is or is not an experienced drinker. In our judgment, and here we accept the
opinion of Dr Chan (PW15), the more reliable indicator of the state of mind of
the accused must be the conduct of the accused immediately prior to and after
the offence.”
It must
be observed that what is in issue in a defence of intoxication is the state of
mind of the person concerned in order to determine whether he could have formed
the necessary intention. The best
evidence to establish his state of mind is his conduct prior to, at the time
of, and after the offence as different people react differently to the same
blood alcohol level. Needless to say
scientific evidence is significant to explain the conduct of the person. In other words it will corroborate the
evidence of conduct. Its absence cannot
therefore be fatal.
In the upshot we dismiss the appeal
and confirm the conviction and sentence imposed by the High Court.
Date:
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Court of Appeal
Counsel:
For the Appellant: Encik
Karpal Singh
Solicitors: Tetuan
Karpal Singh
Peguambela
& Peguamcara
No
67, Jalan Pudu Lama
50200
For the Respondent: Encik
Abdul Wahab bin Mohamed
Timbalan
Pendakwa Raya
Jabatan
Peguam Negara
Bahagian
Pendakwaan
Pusat
Pentadbiran Kerajaan Persekutuan
62512
Putrajaya