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PUBLIC PROSECUTOR VS ADIN ANAK USAT, ROBERT ANAK USAT [2011] MYSSHC 490 (30 December 2011)

1 MALAYSIA

2 IN THE HIGH COURT OF SABAH AND SARAWAK

3 CRIMINAL TRIAL NO: 45-05-2009 (BTU)

4 BETWEEN

5 PUBLIC PROSECUTOR …COMPLAINANT

6

7 AGAINST

8

9 ADIN ANAK USAT …1ST ACCUSED

10 ROBERT ANAK USAT …2ND ACCUSED

11

12 RULING AT THE END OF PROSECUTION’S CASE

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15 I. Introduction

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17 1. The Charge

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19 Both Accused were charged under Section 302 of the Penal Code

20 (Code) read together with Section 34 of the Code as follows:-

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22 “That you, jointly on 08th day of September, 2009, at about 12.30
23 a.m. at the back lane of a house, 34th Mile, Bintulu-Miri Road, In

24 the District of Bintulu, in the state of Sarawak, in furtherance of

25 common intention of you all, did commit murder by causing the

26 death of one JAMBAU ANAK SUPET (M) and that you have

27 thereby committed an offence punishable under Section 302 of

28 the Penal Code read with Section 34 of the same Code”

67 wood about 3 feet long and the width is about 2 inches and hit

68 my grandfather using that piece of wood. Then my

69 grandfather took the parang and slashed my father. Then my

70 mother, Vincent and myself grabbed the parang from my

71 grandfather. I tried to pull my grandfather away from my father

72 but I could not do so because my grandfather’s hand was

73 covered with blood and slippery.”

84 “I saw injury on my grandfather’s head”

85 “It was a cut”

86 “On the right forehead”

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9. PW6 then punched and shoved the 1st Accused away from the

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(1) External injuries (pgs. 1-2)

(a) Laceration at left upper temporal area measuring 4cm long, 0.8cm wide and up to skull deep;
(b) Laceration at right temporal area measuring 3cm long,
0.8cm wide and 0.5cm deep;
(c) Laceration at the left anterior parietal area measuring 2cm long, 0.3cm wide and 0.3cm deep;
(d) Laceration anterior to the left ear, middle level, measuring
3cm long, 0.5cm wide and 0.5cm deep;

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(e) Abrasion at left cheek; and
(f) Abrasion at right lower abdomen. (2) Internal Injuries (pg. 2)
(a) Haematoma below the skin anterior chest;
(b) There was multiple lateral right ribs fracture noted;
(c) On opening the scalp skin there was some haematoma below the skin at right and left temporal area;

(d) On opening the skull, there was small depressed fracture at left temporal area measuring about 3cm in length; and
(e) There was also hairline fracture at middle fossa extending to base of skull.

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(a) On Exhibit P5B:(“E1”) Parang scabbard: 2nd Accused and deceased;
(a) On Exhibit P8B(i)/:(“E4 (a)”) wood plank: 2nd Accused and
deceased; and
(b) On Exhibit P8B(ii): (“E4 (b)”) wood plank: 2nd Accused.

The Chemist report indicated that the 1st Accused’s DNA was not found on the above Exhibits. In respect of Exhibit P6B/(“E2”) torch light, the weak DNA profile was unsuitable for comparison (lines
986-991 pg. 53 NOP).
II. The Law: Murder
1. Section 302 Penal Code:
Under the Penal Code (Code), the offence of murder is more clearly defined by Section 300 as follows:-

“Except in the cases hereinafter excepted, culpable homicide is murder-

(a) if the act by which the death is caused is done with the intention of causing death;
(b) if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
(c) if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
(d) if the person committing the act knows that it is imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

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and;
Section 302 of the Code states that:-
“Whoever commits murder shall be punished with death”

Under Section 34 of the Code, if the murder is found to be committed with common intention by several persons, each one of them is liable for the murder.
2. Burden/Standard of Proof
The burden of proof lies throughout upon the Prosecution and at the end of the Prosecution’s case to establish a prima facie case against both the Accused. It has been observed in the case Of Looi Kow Chai

& Anor v PP (2003) 2 AMR 89 that:-

“It is the duty of a judge sitting alone to determine at the close of the prosecution’s case, as a trier of fact, whether the prosecution had made out a prima facie case. He must subject the prosecution evidence to maximum evaluation and ask himself whether he would be prepared to convict the Accused on the totality of the evidence contained in the prosecution’s case if he were to decide to call upon the Accused to enter his defence and the Accused had elected to remain silent. If the answer to that question is in the negative, then no prima facie case would have been made out and the Accused would be entitled to an acquittal”.

See also PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457; [2005] 6 MLJ

393

In order for the Court to call the defence and require both Accused to answer the prosecution’s case the Prosecution must make out a prima facie case against both Accused, failing which the Court must record

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3. Ingredients of the Charge
The 4 ingredients of the Charge that are required to be proved by the
Prosecution under Section 302 of the Code are:-

(1) The deceased had died on the 08.09.2009 at 12.30 am at the back lane of a house, 34th Mile, Bintulu-Miri Road, In Bintulu Division, in the State of Sarawak, as in the charge:
(2) The death of the deceased was caused as a result of injuries sustained by him; and
(3) The act or acts was or were done by both the Accused; and
(4) That in inflicting the injuries upon the deceased, the Accused caused them with the intention of causing death or knew they would cause death or that such bodily injuries were sufficient in the ordinary cause of nature to cause death.
(See: Sainal Abidin Bin Mading v Public Prosecutor [1999] 4 MLJ 497)
In addition under Section 34 of the Code, the acts must be done in furtherance of a common intention of both Accused.
(See: PP V. Teong Lung Chiong & Ors (2010) 4 CLJ 1)
It is the duty of the Prosecution to make out a prima facie case against both Accused by proving all the ingredients under Section 302 read with Section 34 of the Code failing which the Court need not call the defence of both Accused and to acquit them.(See PP v Mohd Radzi Abu Bakar (2006) 1 CLJ 457)
III. Any Prima Facie Case to Answer

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A. Prosecution’s Case:

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The Court finds that the Prosecution had adduced ample evidence to prove beyond reasonable doubt the 1st ingredient of the Charge that the dead person in the Charge is Jambau a/k Supet (the deceased). The deceased’s body was identified by his daughter PW6 before the post-mortem on 17.9.09 at the Bintulu hospital. The Post mortem report (Exhibit P44) had also identified the dead person as the deceased, Jambau A/K Supet.
2. That deceased died as a result of injuries sustained by him
The Court finds as regards the second ingredient from the evidence of PW 14 who conducted the post-mortem from his Post mortem report (Exhibit P 44) that there are 2 causes of death.
The first cause is the intracranial hemorrhage or bleeding in cranium which is caused by fracture of skull or fracture in cranium. The second cause is haemothorax or bleeding in chest cavity caused by fracture of right ribs. According to PW14 both injuries are respectively fatal in nature.
PW14 also testified that the fracture of cranium or skull and the fracture of ribs were caused by blunt object. PW14 agreed that the 2 pieces of wood planks (Exhibits P8B(i) &(ii) ) can cause the fracture of cranium or skull and ribs.
The Court finds as regards the second ingredient of the Charge that the Prosecution has adduced sufficient evidence to make out a prima facie case that the deceased died as a result of injuries sustained by him caused by blunt object.
3. That the fatal injuries of deceased were inflicted by 1st and 2nd Accused
On the 3rd ingredient of the Charge, learned DPP concedes that PW12,

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who saw what happened at the back of deceased’s house before he was found dead (PW12: lines 288-290 pg. 15 NOP.) Therefore the Prosecution relied solely on circumstantial evidence to prove that it was both Accused who inflicted the fatal wounding of the deceased based on the facts as found by the Court above from the fight to the PW7’s
police report (Exhibit P23), the Chemist report (Exhibit P21) showing 1st

Accused’s DNA on the 3 exhibits taken from the back of the house near the deceased and the Post mortem report (Exhibit P44).
Learned DPP had submitted that based on the above circumstantial evidence the Prosecution had made out a prima facie case against the both Accused in respect of the 3rd ingredient of murder because the sequence of events that led to the death of deceased began from the living room where there was a fight between both Accused and the deceased. Learned DPP submitted that the incident in the living room and incident at the back of the house are continuous as the timeline for the fighting in living room and the deceased found dead at the backyard are too close.
It is in the evidence of PW6 that the 1st Accused and 2nd Accused chased the deceased through the backdoor. This evidence according to learned DPP showed that the 2nd Accused was present at the back of the house before the deceased was found dead.
PW7’s police report (Exhibit P23) stated that: ”Robert dan bapanya mengejar mangsa dan kemudian memukulnya dengan menggunakan papan di bahagian kepala si mangsa.”
There is evidence from the fact that the 2nd Accused had contact with both wood planks (Exhibits P8B(i) & (ii)) because his blood DNA matched with the bloodstain DNA found on them. The DNA blood of the deceased was found on one of the wood planks (Exhibit P8B(i)). From this learned DPP invited the Court to draw the irresistible inference that he must have used them as the blunt object to inflict the 2 fatal injuries

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on the deceased. PW14 confirmed that both wood planks if used with strong force can cause the fatal injuries of the deceased. Therefore the Court can draw the irresistible inference that at the back of the house, the 2nd Accused had used either or both wood planks (Exhibits P8B(i) & (ii)) with strong force to inflict the fatal injuries found on the deceased.

In regards to the 1st Accused, PW6 had testified that the 1st Accused had kicked and punched the deceased shoulder and thigh (pg. 122 of NOP) in the living room. In fact the deceased at that particular point of time was not armed anymore and harmless. After the fight the deceased ran out through the backdoor and the 1st Accused chased after him. Up to this stage learned DPP submitted that the 1st Accused had took part in the criminal behavior where he actively contributed in causing injury to the deceased in the living room thus he shared same liability with the 2nd Accused pursuant to Section 34 of the Code.
Therefore learned DPP submitted that the irresistible inference can be drawn that the 1st Accused was also present at the back of the house when the fatal injuries were inflicted on the deceased by the 2nd Accused and had by his presence therefore continuously and actively participated with the 2nd Accused in causing the fatal injuries to the deceased at the back of the house. Even mere passive presence to give moral support at the back of the house is sufficient to render him liable under Section 34 of the Code even though his DNA was not
found on the wood planks (Exhibits P8B(i) & (ii)). In R v Vincent Banka

(1936) 5 MLJ 66 on Section 34 of the Code, it was stated:

“…Where there is a unity of criminal behavior among several persons in the furtherance of a common intention which results in something being done by one of those persons for which that one would be punished, then all who so took part in the criminal behavior are responsible for the act of that one individual.”
See also PP v Chew Cheng Lye (1956) 22 MLJ 240.

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It is trite law that the circumstantial evidence that Prosecution relies on must in the final analysis inevitably and inexorably lead to the Court to a single conclusion to both the Accuseds’ respective guilt and learned DPP submitted that they have done so here and made out a prima facie case against both Accused. (See: FC in Sunny Ang V PP (1966)

2 MLJ 195, HC in PP V Chee Cheong Hin Constance (2006) 2 SLR

2004 , COA in PP v Oh Laye Koh (1994) 2 SLR 385.)

Learned DPP submitted that the circumstantial evidences above are sufficient to raise single conclusion it was both Accused that intended and inflicted the 2 fatal injuries that caused the death of the deceased. Thus prima facie proof for the 3rd ingredient of murder has been established.
4. That the fatal injuries were inflicted with the joint intention of causing death of deceased
For the 4th ingredient of the Charge, learned DPP submitted it is incumbent upon this Court to look at the nature and number of injuries caused to the deceased by both the Accused by referring to the evidence of PW14 and his Post mortem report (Exhibit P44) as to the external and internal injuries their nature and number that were sustained by the deceased to his person.
Based on this evidence, learned DPP submitted apart from the nature and number of injuries sustained by the deceased, the testimony of PW14 of the need to use strong force to hit the deceased with the wood planks (Exhibits P8B(i) &(ii)) to cause the 2 fatal injuries is another factor that leads to an irresistible inference that the Accuseds’ intention must have been to cause death (see Tham Kai Yau & Ors v PP (1977) 1 MLJ 174).

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Learned DPP contended that based on this direct and circumstantial evidence, each of the Accused played their role in causing injury to deceased from the living room to the backyard before he was found dead. The types of fatal injuries suffered can only but be proof of the intention to cause the death of the deceased to satisfy the 4th ingredient to establish murder. Further both Accused had fought with and later chased after the deceased who wanted to save his life. This shows that

both Accused had common intention to cause death thus sharing joint liability under Section 34 of the Code.
Learned DPP submitted that by looking at the nature and number of injuries sustained by the deceased to his person and on the circumstantial evidence on how the Accused caused the fatal injuries by using wood planks to fracture the cranium and ribs, the Prosecution has established prima facie the 4th ingredient of murder and for the Court to draw an irresistible inference that there was a common
intention on the part of both the Accused by the fatal injuries inflicted to cause the death of the deceased.
5. A Prima Facie Case to Answer
Finally learned DPP submitted that the Prosecution has established all
4 ingredients to make out a prima facie case against both the Accused and prays for the Court to call upon both Accused to enter their defence on the offence of murder.
B. Defence’s Case & Court’s Findings
The Court considers that there is no question that the Prosecution has adduced sufficient evidence to satisfy the first 2 ingredients of death and cause of death of the deceased. This is not challenged by both the Assigned Counsel.
In respect of the 3rd and 4th ingredients the Court will now have to consider the Defence submissions to ascertain whether there is

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evidence to make out a prima facie case to link the injuries causing the death of the deceased as inflicted by both the Accused and with mens rea at the back of the house.

Assigned Counsel for the 1st and 2nd Accused firstly submitted that the Prosecution had failed to make out a prima facie case against both Accused in respect of the Charge as there was no evidence that directly shows that the cause of death of the deceased were due to the act of any of the Accused.
Secondly, in respect of the use of circumstantial evidence on inflicting injuries both Assigned Counsel for 1st and 2nd Accused submitted the same points as follows:-
(1) Contradictory evidences given by PW6, PW7 and PW8
Assigned Counsel for the 1st Accused submitted that from the testimonies of PW6, PW7, PW8 and PW9 i.e. all the eye witnesses present at the crime scene that their evidence adduced were contradictory to each other i.e. PW6, PW7 and PW8 in particular.
(a) Injuries
The examples of contradiction given all related to the fight between the deceased with the 1st and 2nd Accused in the living room. The Court agrees with submission of learned DPP that there will be contradictions of evidence among witnesses to an ongoing event since every witness gives evidence on his respective angle of view through memory, especially here when events happened so swiftly that each witness may only recall part of the occurrence.
The Court finds that the contradiction of evidence on the fight in the living room has no impact on the 3rd ingredient at all as to who inflicted the fatal injuries on the deceased at the back of the house.

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The only significance to the Court of what happened in the living room and the findings the Court will make here from the evidence adduced is that:-

(i) the 2 fatal injuries to the head and the right ribs by a blunt object killing the deceased were not inflicted on the deceased during the fight in the living room:

 PW14 was affirmative that the murder weapon would be the two wood planks (Exhibits P8B (i) and (ii)).

 The strip of wood (Exhibit P24) used by the 2nd Accused to hit the deceased’s on the back was never identified as a murder weapon (PW8: lines 1983-1986
& 1998-2002 pgs. 102 and 103 NOP).

 PW8’s evidence of the wound on the head of the deceased is totally unreliable but he did in cross examination retract his evidence that there was a wound on the deceased forehead. (PW8: lines 2047-

2048 pg. 105; lines 2264-2278 pgs. 116-117 and lines
2290-2295 pg. 117 NOP.) PW6 testified that deceased did not sustain any injuries while in the living room (PW6: lines 1350-1353 pg. 71 NOP).
(ii) On the intervention of PW6, the deceased was able to get up and run away from the assault of the 1st Accused through the backdoor of the living room. (PW6: lines 1300-1303 pg. 68
NOP.)
(iii) the blood of the 2nd Accused would have been spilt onto the hands, arms and body of the deceased when he slashed the
2nd Accused with his parang (Exhibit P14B) and caused the

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multiple injuries as recorded in the 2nd Accused’s medical report (Exhibit D1). PW6 who had taken the parang (Exhibit P14B) from the fighting trio had testified (PW6: lines 1282 -
1283 pg. 67 NOP):
“After I handed the parang to Vincent, I was covered in blood.”

This was confirmed by PW8 (PW8: lines 1986 -1990 pg. 102
NOP):
“Then my mother, Vincent and myself grabbed the parang from my grandfather. I tried to pull my grandfather away from my father but I could not do so because my grandfather’s hand was covered with blood and slippery.”
(iv) The 2nd Accused was bleeding profusely from his multiple wounds on his face, neck, elbow and back according to PW6 causing him “to sit on the bed in pain” in the living room while the 1st Accused was kicking the deceased who had fallen down (lines 1328-1331 pg. 69 and lines 1571-1588 pgs. 81-
82 NOP).
(v) PW7 had left for a nearby neighbour’s house to hide the parang (Exhibit P14B) and he did not see what happened next (PW7: lines 1690-1693 pg. 87 and line 1709 pg. 88
NOP).
(vi) PW8 had also left for another neighbour’s house to call for his help in using his van to take the wounded Accused to the Bintulu Hospital and he also did not see what happened after he left. (PW8: lines 1990-1997 pg.102 and lines 2059-2062 pg. 106 NOP.)
(b) Chasing after the deceased to back of the house

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The material contradiction of evidence on what happened after the deceased was told to run through the back door by PW6 as pointed out in the submission by Assigned counsel for both Accused is of relevance in deciding whether to draw the irresistible inference that learned DPP wants the Court to draw that both Accused had went after the deceased through the back door and must have inflicted the fatal injuries on the deceased at the back of the house.
The contradictory evidence which the Court considers as relevant are set out as follows:-
(i) Evidence of PW6
At first PW6 testified in her Examination in Chief (PW6: lines 1352-
1377 pgs. 70-71 NOP.) :-

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“DPP: After you punched and shoved Adin, did you say

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anything to Jambau?

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PW6: I asked Jambau to run away.

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DPP: How long did you see Adin kicking and punching

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Jambau?

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PW6: I don’t remember how long.

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DPP: You said you asked Jambau to run. After that what

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did Jambau do?

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PW6: He ran away from the house after that.

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DPP: When he ran away where did he go?

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PW6: He went our through the back door of the house.

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DPP: Before he run away through the back door, did you

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see any injury on Jambau’s body?

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PW6: I did not see any injury on Jambau’s body before

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he ran away.

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DPP: When Jambau ran to the back door, what did Adin

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and Robert do after that?

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PW6: I did not see what Adin and Robert do after

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Jambau ran out through the back door.

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DPP: Just now you said that you did not see what Adin

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and Robert do after Jambau ran out through the

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back door.

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Where were Adin and Robert when Jambau ran

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away to the back door?

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PW6: Robert was sitting on the bench outside the front

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part of the house as he was injured. Adin went to

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Nanggai’s house through the front door.”
After short recess PW6 continued her Examination in Chief but changed her evidence and testified (PW6: lines 1385-1398 pg. 72
NOP.) as follows :-
“DPP: When Jambau ran away through the backdoor,

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where did Robert and Adin go?

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PW6: Robert was sitting outside the front part of the

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house. Adin was chasing after Jambau. I only saw

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him up to the stairs.

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DPP: Before Robert sitting outside the front part of the

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house, did he also chase after Jambau?

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PW6: Yes.

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DPP: You said that Robert also chased after Jambau,

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from where to where did he chase Jambau?

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PW6: I only saw Robert chased after Jambau from the

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living room to the stairs. I did not see what

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happened after that.

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DPP: Does it mean that the three of them went out of

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the room through the back door?

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PW6: I do not know.

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(Emphasis added)

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PW6 then went on to testify (PW6: lines 1399-1418 pg. 73 NOP) as

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follows:-
“DPP: You said that Robert was chasing Jambau to the

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stairs. Which stairs?

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PW6: The back stairs.

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DPP: If I show you the photographs of the house, would

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you be able to identify them?

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PW6: Yes.

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DPP: May I request Exhibit P3 be shown to the witness.

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Is photograph E your house?

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PW6: Yes.

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DPP: May I request photo Q be shown to the witness.

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PW6: Photo Q is the back door of my house.

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DPP: Is this the stairs at the back door where Jambau

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went out from?

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PW6: Yes.

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DPP: Is this the door through which Adin and Robert

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chased Jambau?

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PW6: Yes.”

Under cross examination by Assigned counsel for the 1st Accused she testified of her absence in this crucial period of the deceased exit from the living room (PW6: lines 1514-1528 pg. 79 NOP):
“DC1: Do you agree with me that at that particular time

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also present at the scene were Vincent and Rudy?

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PW6: Yes.

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DC1: Do you agree with me that after Jambau was

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released by Adin, Jambau was attacked by Vincent

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and Rudy?

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PW6: I disagree.

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DC1: You disagree because you were not present at that

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particular scene after Jambau was released by

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Adin.

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PW6: Yes, I agree.

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DC1: So I put it to you that after Jambau was released,

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you do not know what had happened?

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PW6: Yes, I agree.

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DC1: I put it to you that after you took the parang

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from Jambau, you did not know what happened

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to him.

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PW6: I agree.”

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(Emphasis added)

On the above PW6’s evidence, the Court can find that because of her second intervention, it allowed her father, the deceased to run to the back door. In respect of what happened after that, the Court agrees with Assigned counsel that there is inherent and material conflict of her own testimony as her testimony progressed in respect of the conduct of both Accused after she intervened to allow her father the deceased to run to the back door.
There is a very strong likelihood her contradiction stems from the fact that she was undergoing a very traumatic experience of seeing her own father, the deceased fighting and slashing her own husband, the 2nd Accused with his parang (Exhibit P14B) which she had stopped by her taking away the parang. This was followed immediately by her father in law, the 1st Accused fighting with her father, the deceased which she again intervened to allow the deceased to escape by the back door. The Court questions the quality and reliability of her evidence in view of the material inconsistencies of her testimonies that wavered between seeing and not seeing what happened after she intervened to allow the deceased to escape from the living room to the back door.
The Court finds that her testimony is only consistent in regard to the fact that she only saw both Accused go to the back door only. She never gave any evidence that both the Accused went to the back lane of the house where the deceased was found dead. The Court can confidently find from PW6’s testimony that she did not see what happened at the back of the house or how, who and what
caused her father, the deceased to die there to prove the 3rd and
4th ingredients of murder against both Accused.
(ii) Evidence of PW7

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PW7 testified in respect of the living room and the discovery of the deceased at the back of the house as follows:-

 PW7 came out from his room after the slashing of the 2nd Accused by the deceased and he saw PW6 and PW8 was holding a parang (Exhibit 14B). He took the parang from them and hid it at his neigbour’s house. (PW7: lines 1662-
1666 pg. 86 NOP.)

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 three other witnesses Susanti, Cindy and Affendi (last 2

PW8’s siblings(PW6: line 1251 pg. 65 NOP)) were also present at the living room when he came out from the room. At that time the 1st Accused was still in his own room. (PW7: lines 1680 pg. 87 NOP.)
 the 1st Accused came out from his bedroom and went over to where the 2nd Accused and the deceased were. The 1st Accused took the oil lamp and throw it to the deceased. After
that he did not see what happened next as he went over to his neighbour’s house to hide the parang (Exhibit 14B). (PW7: lines 1690-1693 pg. 87 and line 1709 pg. 88 NOP.)

 About 5 minutes later, while at the neighbour’s house (two bileks away) he heard the deceased groaned in pain at the back of his house but did not hear anything other than the deceased. (PW7: lines 1726-1729 pg. 89 NOP.)

 Not long after that a van came and took PW6, both Accused to Bintulu Hospital (PW7: lines 1733 pg. 89 NOP).

 After the van left, he went with his wife, PW8 and the neighbour and his wife to the back lane of the house where

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they saw the deceased lying on the ground motionless and dead. He saw that the deceased had a head injury. (PW7: line 1738-1748 pg. 90 NOP.)

The Court based on the evidence of PW7 will find that he had left the living room and was at the neighbour’s house and was not an eyewitness of what happened to the deceased after the parang was snatched by PW6 and given to PW7 for hiding (PW6: line 2371 pg. 121 NOP).
If his testimony on the throwing of the lamp is true, it would mean that the only source of light in the living room that evening by then has been doused and the episode of the beating of the deceased by the 1st Accused was in a state of darkness. In other words nobody could see very well what happened after that. Further Assigned counsel submitted that based on PW6’s evidence there
was no oil lamp at the back of the house and the back of the house is very dark at night. (PW6: lines 1589-1594 pg. 82 NOP.)
On PW7’s police report (Exhibit P23) he testified that even though he had reported to the police in his police report that:

”Robert dan bapanya mengejar mangsa dan kemudian memukulnya dengan menggunakan papan di bahagian kepala si mangsa”;

he did not see the incident of where he alleged that the Accused hit the deceased with a wood on the head. PW7 further testified that this part of the report was actually a product of story that has been related to him by PW8. (PW7: lines 1795-1798 pg. 93 NOP.)
However, PW8 in his testimony had denied relating anything to
PW7 on cause of death as alleged by PW7. (PW8: lines 2098-
2108 pg. 108 NOP.) PW8 was at that time at the neighbour’s house

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to get him to come in his van to take his father to the Bintulu Hospital and could not have witnessed what happened at the back of the house. In this respect the Court can only conclude that the part of the police report (Exhibit P23) touching on the episode of the hitting of the deceased by the Accused is hearsay evidence and is not admissible. It has also been discredited by the denial of PW8.
The Court accepts that PW7 heard the deceased groan in pain but it does not shed any light as to what happened to the deceased after he left through the back door of the house. His other testimony as to both Accused leaving by van shortly thereafter tallies with that of PW6.
(iii) Evidence of PW8
Based on the submission of Assigned counsel for the 1st Accused the testimony of PW8 on the ongoings in the living room had contradicted with PW6 and PW7 testimonies.
The Court agrees with the submission of Assigned counsel for the
1st Accused that his evidence is generally contradictory and unreliable especially on sighting of blood on the head or a head wound at the deceased’s head from the living room episode and as if he was there to witness the 1st Accused beating the deceased when he would have already left for the neighbour for help (PW6: line 2371 pg. 121 NOP) because he had testified (PW8: line 2056-
2062 pg. 106 NOP):-

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“DPP: How long was the fight?
PW8: They were still fighting when my mother asked me to seek help from David.

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DPP: After your mother grabbed the parang from your grandfather, what happened to your grandfather?
PW8: I did not see what happened to my grandfather after that because I went to David’s house to seek help.”

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could not be in a position to give any evidence on this except PW6. The Court has found that PW6’s testimony as unreliable and at best she had testified that both Accused chased the deceased to the back door. There the evidence stops and she testified she did not see what happened after that (as highlighted in extracts of her evidence above).

There are two considerations here that the Court has to take cognisance of before an adverse inference can be drawn firstly, it is the discretion of the Prosecution whether to call or not to call a witness and this is subject to the Prosecution’s duty of having to discharge the onus of proof (see Adel Muhammed El Dabbab v Attorney-General for Palestine (1944) 2 All ER 139; Teoh Hoe Chye v PP (1987) 1 MLJ 220).
This leads to the 2nd consideration, that is, however only if the Prosecution had discharged its duty to make out a prima facie case then is there is no obligation to call other witnesses. On this in Chia Leong Foo’s case ((2000) 4 CLJ 649 Augustine Paul J at page 672 g had held:
“It is well settled that in a criminal case prosecuting counsel, provided there is no wrong motive, has discretion as to whether or not to call any particular witness and in particular has a discretion not to call in support of his case a witness whom he does not believe to be a witness of truth (see Khoon Chye Hin v. PP [1961] MLJ 105). But there is an obligation on the prosecution to call as witnesses persons whose evidence is essential to unfold the narrative upon which its case is based (see Seneviratne v. R [1936] 3 All ER 36). Thus as Abdul Hamid CJ (Malaya) (as he then was) said in Teoh Hoe Chye v. PP [1987] 1 MLJ 220 at p. 229:
Nevertheless, the decision whether to call or not to call a witness including a witness from whom a statement has been taken is always the right of the prosecution

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(Abdullah Zawawi v. PP [1985] 2 MLJ 16). Insofar as the trial court is concerned, its duty is essentially to decide whether on the evidence before it the prosecution has proved its case, and if there are unsatisfactory features in the prosecution case to determine whether, in the light of such feature, the prosecution case fell short of proof beyond reasonable doubt (Abdullah Zawawi’s case, supra).
Thus the question to be asked in each case is whether the prosecution has proved its case even without calling some other witnesses who are available. An adverse inference cannot be drawn for failure to call a witness when the prosecution has discharged its burden............. As Yong Pung How CJ said in Chua Keem Long v PP [1996] 1 SLR 510 at pg 523-524:
“.........The court must hesitate to draw any such presumption unless the witness not produced is essential to the prosecution’s case.........”
“... the words “may presume” in presumptions of facts like in s.114 of the Evidence Act 1950 which only gives the court a discretion to raise the presumptions contained therein.”
(Emphasis added)
In the light that these 3 eye witnesses are available and may throw light on what happened after PW6’s evidence stopped at the point of the back door of the house, based on Chia Leong Foo’s case (supra), the Prosecution will need their evidence to make out a prima facie case against both Accused in the light of the findings the Court is going to make. The failure to call or produce them as witnesses warrants the Court to draw an adverse inference under Section 114 (g) of the Evidence Act 1950 against the Prosecution

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“At the back of the house, Adin and Robert had hit the deceased with torchlight, parang sheath and hitting him with planks.”

Assigned counsel for the 1st Accused submitted that from the whole of the testimonies adduced through the Prosecution’s witnesses, none of the witnesses had given any evidence of what actually happened at the back of the house before the discovery of the body of the deceased there.
On this the Court notes that PW12 testified the basis of his conjecture for concluding both the Accused murdered the deceased at the back of the house as (PW12: lines 4424-4423 pg. 226 NOP):-
“It is based on blood stains found on 3 exhibits and also based on Vincent Anak Bubun (PW7)”
The Court will now consider the submission of the Assigned counsel on this incriminating evidence:-
(a) PW7’s Police Report (Exhibit P23)
Assigned counsel for the 2nd Accused submitted that the police report of PW7 (Exhibit P23) is based on hearsay as it has been admitted by PW7 in Court that the crucial part of his police report

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(Exhibit P23) was a product of a story that has been related to him by PW8 who has since denied I his testimony of telling anything to PW7. (See PP v Sarjit Kaur Najar Singh (1998) 5 CLJ 609.)

The Court as had already found that this is hearsay and also that it had been discredited by PW8’s denial, it cannot be relied upon as evidence by the Prosecution to prove that the both Accused hit the deceased as alleged in the police report. The Court also notes that the 1st Accused was also implicated in this police report.
(b) Blood Stains on Exhibits
Assigned counsel for the 2nd Accused then raised the question whether it is sufficient for the investigation team especially PW12 (IO) to come to the conclusion that the deceased was murdered by the 1st and 2nd Accused based on the presence of the 2nd Accused’s blood on Exhibits P5B (parang sheath) and P8B(i) & (ii) (2 pieces of wood) and based on Exhibit P23 (police report) lodged by PW7.
The Court had earlier found from the evidence of PW5, the Kuching
Chemist and her Chemist report (Exhibit P21):
(i) that the blood stains and DNA profile found on Exhibits P5B (parang sheath), P6B(torchlight) and P8B(i)(1 piece of wood plank) were mixed profiles that originated from the deceased and the 2nd Accused;
(ii) the blood stains and DNA profile found on Exhibit P8B(ii)
had originated from the 2nd Accused; and
(iii) the blood stains found on P6B (torchlight) could not be identified.
It would appear and the Court agrees with submission of Assigned counsel for the 1st Accused that none of this blood evidence found at the back of the house by the police links the 1st Accused presence at the scene at all.

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Assigned Counsel for the 2nd Accused pointed out in relation to the
2nd Accused’s bloodstain evidence is the impact of the evidence of
PW12 as follows:-

“DC1: Do you agree with me that no Pol Form 31 request was sent to the Chemist for finger prints and palm prints test on the torchlight, parang sheath, planks and the piece of wood?
PW12: I agree because the finger prints dusting has been done by the photographer, Lance Corporal Zulkifli and found negative.”
(PW12: at lines 4444-4448 pg. 227 NOP)
“DC1 During the course of your investigation you did not find any evidence of foot prints of the 1st and 2nd Accused outside the back of the house specifically nearby the area where the deceased’s body was found?
PW12: I agree.”
(PW12: at lines 4590-4593 pg. 234 NOP)
From this the Court notes that there is no evidence of foot prints from the crime scene or finger prints from the exhibits. The Court agrees with the submission of Assigned Counsel for the 2nd Accused that the evidence of foot prints or finger prints of the Accused on the two wood planks (Exhibits P8B(i) & (ii)) would have been incriminating of the Accused as being at the crime scene. The Court finds that the converse of this failure to have this evidence also materially weakens whatever incriminating weight that might have been given to the bloodstain evidence of the 2nd Accused found on the exhibits from the back yard.
Assigned counsel for the 2nd Accused then finally submitted that on the presence of the 2nd Accused’s bloodstains at the back of the

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house especially on the 2 exhibits i.e. Exhibits P5B and P8B(i) & (ii), the Court may draw 3 inferences namely:-
i) The blood stains was due to the deceased’s injuries and the
2nd Accused blood that dripped from the hand of the deceased without the presence of the 2nd Accused at the back of the house; or

ii) The blood stains was due to the deceased’s injuries and the
2nd Accused’s injuries who is present at the back of the house; or
iii) The blood stains was due to the 2nd Accused’s blood that
dripped from the parang (Exhibit P14B) that was used by the deceased to slash the 2nd Accused which subsequently mixed with the deceased’s blood who was present at the back of the house.
(See Kamis v Public Prosecutor (1975) 1 MLJ 46, PP v Resty Agpalo & Ors (2011) 2 CLJ 441, PP v Mohd Radzi Abu Bakar (2006) 1 CLJ 457.)
Learned DPP had submitted that the presence of the blood DNA profile of the 2nd Accused on the parang sheath (Exhibit P5B) and two planks (Exhibits P8B(i) & (ii)) give rise to the irresistible inference the Court can draw from this evidence that it is proof that the 2nd Accused must be there in person and in contact with the parang sheath at the back of the house. We will now consider this submission in relation to the Defence’s submission.
(i) Parang Sheath (Exhibit P5B)
The Court has found earlier from the evidence of PW6 and PW8 that in the living room the 2nd Accused was bleeding profusely from the slashes of the deceased from the parang (Exhibit P14B). This bleeding of the 2nd Accused is also evident from the

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photographs of the living room (Exhibits P3 (R) – (DD) and (MM)). Since the parang sheath (Exhibit P5B) was found beside the deceased at the back of the house, the irresistible conclusion the Court can draw is that it was the sheath of the parang (Exhibit 14B) he was using to slash the 2nd Accused in the living room and it must have been with him from the time of the slashing to the back of the house.
From the evidence of the 2nd Accused’s bleeding, it is therefore a reasonable expectation and not surprising as contended by Assigned counsel for the 2nd Accused to find that the blood of the
2nd Accused would also be splashed or smeared at the living
room not only onto the clothing, arms, legs and every part of the body of the deceased but as well as onto the parang sheath (Exhibit P5B) of the parang he was using to slash the 2nd Accused.
The Court finds and accepts that this is a reasonable and plausible explanation put forward by Assigned counsel for the 2nd Accused as to how the 2nd Accused’s blood was found on the parang sheath (Exhibit P5B) of the parang (Exhibit P14B). This having happened in the living room, it also creates a reasonable doubt of the contention of the Prosecution that the blood smearing on the parang sheath (Exhibit P5B) by the 2nd Accused happened at the back of the house because the 2nd Accused had come into contact with it there.
(ii) Torchlight (Exhibit P6B)
Even though the DNA profiling on the torchlight (Exhibit P6B) was inconclusive, from the evidence of the 2nd Accused’s bleeding, there must have been smearing of the 2nd Accused’s blood on the deceased’s hands when they grappled for the parang at the living room. So when the deceased was at the

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back of the house using the torchlight (Exhibit P6B), the 2nd Accused’s blood would have been smeared onto the torchlight (Exhibit P6B) from the deceased’s own hands.

The Court also finds and accepts that this is a reasonable and plausible explanation put forward by Assigned counsel for the 2nd Accused as to how the 2nd Accused’s blood could be found on torchlight (Exhibit P6B), if that was his blood.
(iii) Two Wood Planks (Exhibits P8 (i) & (ii))
There is no evidence as to what happened at the place where these 2 wood planks (Exhibits P8 (i) & (ii)) were found beside the fallen deceased. We are left to conjecture as PW12 (IO) had done that they must have been used as the murder weapon by reason of the deceased’s blood stains found on them. PW14 the Pathologist had confirmed that death was caused by blunt object and the 2 wood planks (Exhibits P8 (i) & (ii)) could cause the fatal injury if used with strong force (PW12: lines 4811-4819 pgs. 245
-246 NOP).
The connection with the 2nd Accused is because his blood DNA was found on them according to PW5, the Kuching Chemist and her Chemist report (Exhibit P21). The blood stains and DNA profile found on Exhibit P8B(i) (1 piece of wood plank) were mixed profiles that originated from the deceased and the 2nd Accused. The blood stains and DNA profile found on Exhibit P8B(ii) had originated from the 2nd Accused.
in view of the evidence of profuse bleeding of the 2nd Accused and the Court’s finding that the splashing or smearing of the 2nd Accused’s blood onto the clothing, arms, legs and every part of the body of the deceased at the living room, the Court will also

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similarly find like for the parang sheath (Exhibit P5B) that the 2nd Accused’s bloodstains could have been smeared onto the 2 wood planks (Exhibits P8 (i) & (ii)) through the deceased himself coming into contact with them accidentally or while it was being used to attack him or in the course of the deceased using it in aggression or in defending himself against persons unknown. This is a reasonable and plausible explanation advanced by Assigned counsel for the 2nd Accused as to how his bloodstains were smeared onto these 2 wood planks (Exhibits P8 (i) & (ii)) together with the deceased’s.
This casts a reasonable doubt on the submission of the learned DPP that the Court can draw an irresistible inference that the presence of the 2nd Accused’s blood DNA profile on the 2 wood planks (Exhibits P8 (i) & (ii)) was evidence that he was there and must have used the planks to hit and kill the deceased.
Assigned counsel for the Accused submitted that there was a break in chain of evidence in Prosecution’s evidence to link the 1st and 2nd Accused with the offence of murdering the deceased from the circumstantial evidence to be derived from the PW7’s police report (Exhibit P23) and the DNA profiling. (See PP v Sarjit Kaur Najar Singh [1998] 5 CLJ 609, Public Prosecutor v Lim Kian Tat (1990) 3

CLJ (Rep).)

The Court concludes from the above circumstantial evidence alone adduced by the Prosecution in respect of PW7’s police report (Exhibit P23) and the blood stains of the 2nd Accused on the exhibits falls far short of proving a prima facie case that the 2nd
Accused or the 1st Accused were at the back of the house and that
they must have inflicted the 2 fatal injuries upon the deceased at the back of the house to establish the 3rd ingredient for murder.
(c) Injuries of 2nd Accused

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Assigned counsel for the 2nd Accused had further touched on the injuries suffered by the 2nd Accused and with the facts adduced by the Prosecution witnesses the Court will find that these injuries of the 2nd Accused actually enhances the Defence’s challenge of no prima facie case to answer from the other facts that there is no evidence of foot prints from the crime scene or finger prints from the exhibits found in the backyard to incriminate both Accused as being at the crime scene.
Evidence has been given by PW6 that with the assistance of their neighbour who owns a van they had brought the 2nd Accused to Bintulu Hospital at the same night because he was badly injured. The medical report of the 2nd Accused (Exhibit D1) shows that he had sustained multiple incised wounds over back of right shoulder, left side of neck, right upper arm, posterios aspects of left elbow deep up to bone, cut triceps, ulnar nerve, chip of olecranon and trochlea and deep wound of mandible. The 2nd Accused was admitted to Bintulu Hospital on 8.9.2009 and was only discharged on 10.9.2009. PW12 admitted that the 2nd Accused was seriously injured (PW12: lines 4576-4582 pgs. 233-234 NOP).

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The Court will also refer to the photos (Exhibit P3 (R) – (DD)) of the living room and the front part of the house which shows a lot of bloodstain trails which must have come from the 2nd Accused’s wounds. It means that because of the profuse bleeding from his wounds wherever the 2nd Accused went that night he would leave trails of blood from his wounds. Looking at the photograph Exhibit P3 (Q), there appears to be no bloodstains seen on the stairs or its cement base. None of the Prosecution witnesses testified that there was a blood trail from the stairs to where the deceased was found dead which pre-supposes that the 2nd Accused never passed beyond the doorway down to the bottom of the stairs to the back of

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the house. PW12 had testified they never looked at the ground that night (PW12: lines 4625-4627 pg. 236 NOP):

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“DPP: You said just you said you did not find any foot prints on the crime scene, did you search for it?
PW12: I did not look for foot prints.”

The Court will next refer to the photos (Exhibit P3 (F) – (O) and (NN-SS)) of the spot where the deceased was lying dead where we can see lots of blood splashes or smears. Again if the 2nd Accused was there and because of his profuse bleeding, his bloodstains would be found all over that place in particular on the ground near where the deceased had fallen, if he had been there to inflict the blows with the wood planks to cause the two fatal injuries to the deceased.
On this PW12 testified that he did take a blood sample swap (marked 4 or E3) (Exhibit P7 (B)) from the ground area round the deceased body at S(ign) 4 as shown in photograph Exhibit P3 (M) (lines 3732-3740 pgs. 190). According to PW5, the Kuching Chemist in her Chemist Report (Exhibit P21) at paragraph (i) page
2, she confirmed that the blood stain on the ground belonged to the deceased.
The Court is of the view that since the 2nd Accused was already bleeding profusely, the failure to locate any bloodstain of the 2nd Accused or even mixed up with the deceased’s on the ground near the deceased casts a reasonable doubt on the submission of
learned DPP that he was present to inflict the fatal injuries on the deceased.

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The last finding the Court can make is the effect of the 2nd
Accused’s serious injuries. On this PW6 had testified (PW6: lines
1326 – 1331 pg. 69) as follows:
“DPP: At that time when Adin was attacking Jambau, what did Robert do?

PW6: He was sitting on the bed still in pain because of the slash.
DPP: Was the bed in the living room?
PW6: Yes.”;
The 2nd Accused being so seriously wounded and bleeding profusely by then would be in no position to pursue the deceased to the back of the house and to have the strength to use the wood planks to inflict the fatal injuries with the force as was described by PW14, the Pathologist.
The Court would give the benefit of the doubt to the 2nd Accused because of his multiple slash wounds that he would be incapable to have the strength by then to use the wood planks to kill the deceased with the force required as contented by learned DPP.
The Court will find that the extent and effect of the injuries of the 2nd Accused makes it improbable for him to be at the back of the house without a visible blood trail from his bleeding wounds and that he was in no physical state to inflict the fatal injuries with the force as described by PW14, the Pathologist. This casts a reasonable doubt on the inference that learned DPP would invite the Court to draw against him from the circumstantial evidence of the Prosecution’s case.
(4) 4th Ingredient for Murder: Mens Rea
The Assigned counsel submitted that there could not be any possibility that the 1st and 2nd Accused to posses such mens rea since the fatal

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injuries that led to the death of the deceased were not inflicted by any of the Accused. Based on the evidence given by PW14, the Pathologist there was 2 causes of death namely:-

 Fracture of the skull which led to bleeding in the cranium (See lines 4795-4810 pgs. 244-245 NOP); and

 Fracture of ribs that led to bleeding in the chest cavity (See lines

4834-4835 pg. 246 NOP)
Assigned Counsel also submitted that according to PW14 both fatal injuries were inflicted by a blunt object such as wood and had testified as follows:-
“Q: So, what can cause the fracture of the skull or cranium? A: Severe blow to the cranium due to blunt object
Q: If I show you two pieces of wood, can you explain these
Exhibits can cause the fracture of skull or cranium?
Pray that the witness be referred to Exhibits P8B (i) and
(ii)
A: Yes, these pieces of wood can cause the fracture of the skull
Q: I humbly pray for witness to be referred to Exhibit P8B (i) and (ii). Can these pieces of wood can cause fracture with a strong force?
A: Yes”
(See lines 708-715 pg. 36 NOP)
The evidence of PW6 of the assault on the deceased is as follows:- “When I went out from my bedroom…….After that Adin came and bashed up my father………”
(See lines 1296-1304 pg. 68 NOP) She further testified as follows:-

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“DPP: Just now you said Adin came and bashed up Jambau. Can you explain which part of Jambau’s body he bashed up?

PW6: He was kicking and punching all parts of

Jambau’s body.”

(See lines 1313-1316 pg. 68 NOP) (Emphasis added)

“DPP: How was the force when he punched and kicked
Jambau?
PW6: As hard as he could.”
(See lines 1323-1325 pg. 69 NOP)
“DPP: Which part of Jambau’s body that Adin kicked and
punched?
PW6: Adin was kicking Jambau on his leg and punched him on upper part of his body while he was still lying on the ground.
DPP: Do you know how many times Adin kicked and punched Jambau?
PW6: I do not know…..”
(See lines 1343-1350 pg. 70 NOP) (Emphasis added)
The evidence adduced by the Prosecution on what the 2nd Accused did was through PW8 who testified as follows:-
“DPP: Can you tell us what happened at that time?

PW8: ………I came out from my room and I saw my father took a piece of wood about 3 feet long and the width is about 2 inches and hit my grandfather using that piece of wood…….

(See lines 1982-1997 pg. 102 NOP)

PW8: He hit him once.

At his back.

He used a strong force.”

(See lines 1998-2004 pg. 103 NOP) (Emphasis added)

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Again from the above extract, the fatal injuries to the deceased were not attributable to the kicking by the 1st Accused nor the use of the strip of wood (Exhibit P24) by the 2nd Accused on the deceased. Further this evidence was also never put to the PW14, the Pathologist as to whether it could have inflicted the fatal injuries of the deceased.

It is the Court’s opinion that based on PW6 and PW8 testimonies the kicking, punching and hitting would not have caused death to the deceased in the manner as described by PW14, the Pathologist as being inflicted by a blunt object like the wood planks. After all he was seen running away from the living room presupposing that he was not badly injured by the assault of both Accused.
The Court finds that the Prosecution has failed to adduce cogent prima facie evidence that the 1st Accused or the 2nd Accused or both Accused had inflicted the fatal injuries upon the deceased at the back of the house.
IV. Irresistible Inference from Circumstantial Evidence
Learned DPP had finally submitted that the Prosecution had adduced sufficient evidence in the form of circumstantial evidence in order for the Court to raise the single conclusion that it was both Accused who caused the injury to the deceased which led to the death of deceased.
In the case of Idris v PP (1960) 1 LNS 40; [1960] 1 MLJ 296 on circumstantial evidence Hill AGCJ had stated:
“With regard to the definition of circumstantial evidence I can give you no better definition than quote to you the words of Lord Cairns in the case of Belhaven & Stenton Peerage reported in 1875-6 Appeal Cases, p. 279:

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'My Lords, in dealing with circumstantial evidence we have to consider the weight which is to be given to the united force of all the circumstances put together. You may have a ray of light so feeble that by itself it will do little to elucidate a dark corner. But on the other hand you may have a number of rays, each of them insufficient but all converging and brought to bear upon the same point and when united, producing a body of illumination which will clear away the darkness which you are endeavouring to dispel.'
In other words circumstantial evidence consists of this: that when you look at all the surrounding circumstances, you find such a series of undesigned, unexpected coincidences that, as a reasonable person, you find your judgment is compelled to one conclusion. If the circumstantial evidence is such as to fall short of that standard, if it does not satisfy that test. If it leaves gaps then it is of no use at all. As I have stated this case depends entirely upon circumstantial evidence.”
This is one conclusion is echoed by Abdoolcader FJ (as he then was) in Dato’ Mokhtar Bin Hashim & Anor v PP [1983] 2 MLJ 232 at p. 275 as follows:
“Where circumstantial evidence is the basis of the Prosecution case, the evidence proved must irresistibly point to one and only conclusion, the guilt of the Accused, but in the case tried without a jury the failure by the court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the Accused beyond reasonable doubt (Jayaraman & Ors v PP [1982] 2 MLJ 306).” (Emphasis added)
In other words for both Accused to be convicted on the offence of murder there must be circumstantial evidence adduced by the Prosecution that will

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railroad this Court into ruling that the Prosecution has made out a prima facie case that both Accused did murder the deceased.

The Court agrees with the submissions of Assigned counsel for the Accused on the present case, there is no finger print evidence found on all the exhibits at the backyard or foot prints of the Accused at the backyard. The reason given by PW12 that the failure to find fingerprints were because of rough surface and the weather was damp is not acceptable by the Court.
Next, the 2nd Accused blood stains found on these exhibits have been plausibly explained by the Defence as contamination through the deceased being in contact with the 2nd Accused’s bleeding during the tussle in the living room.
There is no evidence of a blood trail of the 2nd Accused’s from the back door stairs leading to where the deceased laid, if there was it would be sufficient to back up the rest of the circumstantial evidence for supporting a prima facie case to be found. On the other hand, the failure to find such blood trail evidence leads the Court to make the irresistible finding that the
2nd Accused because of his serious injuries could not be present at that
crime scene.
On top of this, the Court has invoked the presumption under Section114 (g) of Evidence Act 1950 on the Prosecution’s failure to call the 3 eyewitnesses in the living room and to draw an adverse inference against the Prosecution because their evidence which may throw light on what happened after the deceased exited through the back door must have been favorable of the Accused.
The police report of PW7 (Exhibit P23) as to the involvement of the Accused with the deceased’s death is based on hearsay evidence which has also been denied by the source PW8 at the trial.

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The Court finds that the circumstantial evidence adduced by the Prosecution does not have the effect of leading the Court to one conclusion but rather are inconclusive of the role that both Accused were involved in the murder of the deceased at the back of the house. The Court will not under the circumstances take a quantum leap to bridge the gap for the
Prosecution not only to connect the presence of the 1st Accused and the 2nd

Accused as being there at the back yard of the house but also as the cause of the death of the deceased.
Having gone through a maximum evaluation of the Prosecution’s case, the Court will follow Munusamy v Public Prosecutor [1987] 1 MLJ 492 where Mohamed Azmi SCJ (as he then was) had said:
“In considering the question of law whether there is some evidence (not inherently incredible) to prove one or more of the essential ingredients of the alleged offence, a judge or magistrate must by necessarily, evaluate and weigh all the evidence. If there is no evidence at all to prove one or more of the essential ingredients of the offence, the Accused must be acquitted without calling for his defence.”
(Emphasis added.)
The Court therefore finds from a maximum evaluation of the case that the Defence has cast a reasonable doubt on the reliability of the Prosecution’s circumstantial evidence on the 3rd and 4th elements to prove murder to establish a prima facie case for calling the Defence.
V. Conclusion
After considering all the evidence and exhibits together with the submissions of the Prosecution and Defence, the Court finds after a maximum evaluation of the evidence adduced that the Prosecution has failed to make out a prima facie case through failing to fulfill the elements of

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the 3rd and 4th ingredients required to establish the offence under Section
302 of Penal Code that both Accused inflicted the fatal injuries that caused the death of the deceased.

The Court however finds from the Prosecution’s case that there is sufficient evidence for what happened in the living room to substitute the Section 302 murder Charge with the reduced charge under Section 323 of the Penal Code of voluntarily causing hurt to the deceased for the 1st Accused and under Section 324 of the Penal Code of voluntarily causing hurt by dangerous weapon to the deceased for the 2nd Accused and call their defence to these charges.
Dated this 30th December, 2011

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-SGD-

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(JOHN KO WAI SENG)

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Judicial Commissioner

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High Court,

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Bintulu

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Counsel:

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For Public Prosecutor: DPP Mr. Hairun Najmi B. Mashahadi

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Timbalan Pendakwaraya

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Cawangan Bintulu.

Assigned Counsel for 1st accused: Mr Stephen Augustine Lateng

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M/s Hii & Co. Advocates,

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Bintulu.

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Assigned Counsel for 2nd accused: Mr Shamsul Bahri

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Abdul Rahim, Sarkawi, Razak,

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Tready Fadillah & Co. Advocates

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Bintulu.

Context