Amuthavalli A/P Andiappan v Public Prosecutor (J-05(M)-551-11/2017)

(a) On 8.12.2014, SP1 received a distress call from an unknown Malay woman that an Indian man was found lying believed to have died. SP1 then reduced the information received vide Tampoi Report No. 14796/14;

(b) On the same day, the police recovered a decomposed body at Taman Munshi Ibrahim, Tampoi, Johor Bahru. The body was then identified by SP2 as being the deceased;

(c) SP 10, the doctor who conducted the post-mortem on the deceased, estimated time of death was at least 2 days from the date the post-mortem was conducted which was on 10.12.2014 at about 9.45 a.m. The cause of death was found to be “Blunt Trauma to the Head”. He opined the injuries sustained “were in keeping pattern of being inflicted by hard and blunt object such as being kicked, hit by hard object such as metal, stick or whichever object with similar pattern. Those injuries were NOT consistent with injury sustained due to self-infliction nor due to accident pattern. Those injuries could have caused neurophysiological disruption and cardio-respiratory centre disruption which led to fatality”; 4

(d) SP12 who was the deceased’s neighbour said that on 2.12.2014 she heard a loud, angry voice of ‘aunty’, her neighbour and then she heard a voice of a man groaning and screaming in pain loudly. She never saw the man next door after that day. She said that there was a putrid smell lingering in her house area afterward. She also said that after a few days she saw few people had come and cleaned the house; and

(e) The police managed to find and arrest the Appellant together with another Indian woman and 4 Indian men in Kuala Lumpur. Investigations then revealed the Appellant had led the police to her house where the police had discovered a pair of crutches which was said to have been used to assault the deceased. Finding of the Trial Judge at the close of the prosecution’s case [5] At the end of the prosecution case, the learned trial judge embarked on a maximum evaluation of the evidence of the prosecutions witnesses to determine the ingredients of Section 302 of the Code had been proven or otherwise. The learned trial judge stated the basic ingredients which prosecution needs to prove as follows:

(a) That the deceased was the named person as stated in the charge;

(b) That the deceased died due to the injuries inflicted on him; 5

(c) That the death is caused with intention of causing bodily injury to the deceased which in the ordinary cause of nature to cause death; and

(d) That the act of causing bodily injury is caused by the Appellant. [6] His Lordship then made the following findings:

(a) The court was satisfied that the deceased was Anbalagan a/l Muniandy by reasons of facial identification by SP2 who was the elder brother of the deceased. The identification of the deceased was also from the fingerprint database kept at Pusat Pendaftaran Penjenayah Malaysia and Singapore;

(b) Based on the SP10’s evidence, his Lordship found the deceased died due to the injuries inflicted on him; and

(c) As to the 3rd and 4th ingredients, his Lordship relied on circumstantial evidence and concluded that it was the Appellant who had inflicted the injuries to the deceased with intention of causing bodily injury to the deceased which in the ordinary cause of nature to cause death. [7] His Lordship then found a prima facie case had been established and ordered the Appellant to enter her defence. 6 Defence [8] The Appellant gave evidence by way of a witness statement pursuant to Section 402B of the Criminal Procedure Code [Marked as PSSD1] and called one other witness SD2 who also gave evidence by way of witness statement [Marked as PSSD2]. [9] In her witness statement the Appellant denied the charge levelled against her that she killed the deceased who was her husband by customary marriage. [10] She said between 1 a.m. on 2.12.2014 until 6.00 p.m. on 8.12.2014 she was not at No: 4K, Jalan NB2 15/1, Taman Nusa Bestari 2, Skudai, Johor Bahru. She further stated that on the dates and time mentioned above she no longer stayed with the deceased at the said address because she had a misunderstanding with the deceased. The deceased was lazy and had an illicit affair with her niece named Malathi. The Appellant left the house on 25.11.2014. [11] She further stated that on the dates between 25.12.2014 till 14.12.2014 she was at an address No: 715, Jalan Jambu Bol 5, Taman Muhibbah, Saleng, Kulai, a house belonging to her late husband, Muruly a/I Venugopal. [12] The Appellant, through her counsel, gave notice of alibi (D60) stating that she and her daughter stayed at the address mentioned in D60. The Appellant explained that on the dates as mentioned in D60, her daughter Givanaiyaki was at all material time in Singapore. She mentioned her 7 daughter’s name in the alibi notice because her daughter knew she stayed at the said address. The Appellant was in touch with her daughter by phone and she too would send her photos to her daughter using the “whatsapp” application. The Appellant explained that the dates mentioned in D60 that is between 25.11.2014 till 14.12.2014 was a mistake when giving instructions to her counsel as she was not conversant in Bahasa Malaysia and English. [13] The Appellant further explained that she only slept at the house as mentioned in the alibi notice because the said house was left vacant for quite some time. She stayed there temporarily so as to save cost rather than staying at the hotel for 19 days which would be exorbitant. [14] During that period, Givanaiyaki stayed in Singapore. The Appellant did not stay with her daughter in Singapore because she had lost her international passport. The witness said during her stay at the alibi address, in the morning she will leave the said house early morning at 7.00 a.m. and walked towards the main road and take a bus to the Hindu Temple named Arulmigu Sri Balasubramaniam along Jalan Skudai-Johor. She will go to the said temple to pray and cleanse herself. After performing her prayers at the said temple the Appellant will buy the necessary provisions such as mineral water and some food. She too will purchase candles for lighting and also a mat to be used as a place to sleep. She will buy enough drinking water as the said house has no water supply. [15] She further said even if a car was parked in the porch quite close to the front door she could still enter the house through the rear door. When asked where the keys to the said house were kept, the Appellant said she kept the keys in the drawer in the New Town Hotel, Petaling Jaya. 8 [16] The Appellant said she did not get to see her neighbours namely SP14 and SP15 respectively, because by the time she got back, SP14 and SP15 have gone to bed. Equally, when she got up every morning, and left house, SP14 and SP15 were still in bed. The Appellant said she had not seen any motorcycle or car parked in the porch of her late husband's house. The Appellant explained that SP14 and SP15 would not see her because she would wake up quite early and quietly leave the house without making any noise so as not to awake the neighbours. [17] The Appellant denied the evidence of SP12 that she heard her angry voice and the groaning and screaming voice in pain on 2.12.2014 as the Appellant had left the house before 25.12.2014. [18] The Appellant said, before she left the house on the 25.12.2014, her nephew, Eric a/I Roy Maniam (“Eric”), her son Jeevabalan a/I Muruly and her daughter Kanageswari a/p Muruly often came to stay in the house from time to time. [19] The Appellant denied that she had hit and assaulted the deceased which resulted in the deceased's death as she was not at the address mentioned in the charge. The Appellant said the person who had assaulted the deceased was Eric. She said she knew about this because when she was staying at her late husband's house at No: 715, she was contacted by Eric who informed her that he had hit and assaulted the deceased using the crutches. 9 [20] Eric and the deceased quarrelled because the deceased had an illicit affair with her niece, Malathi. There were other petty matters done by the deceased which had angered Eric. The Appellant further said at the material time when the quarrel ensued between Eric and the deceased, the Appellant's daughter Kanageswari was also present. She questioned the deceased over the affairs he had with Malathi. [21] When asked to substantiate her claim that it was Eric who hit the deceased, the Appellant referred to Eric’s statement to the police (ID59) in which Eric admitted hitting the deceased although the incident allegedly happen before Deepavali. Further, the Appellant also claims that Eric himself had admitted to her that he hit the deceased on 2.12.2014 with the crutches witnessed by her daughter Kanageswari a/p Muruly and Jeevabalan a/l Muruly. Further in the statement of Chandra Mohan a/l Ramachandran, which was marked as ID56, the police did asked Chandra whether he knew the Appellant together with her “anak” had hit a male Indian. [22] The Appellant finally in her witness statement stated that on 2.12.2014 her daughter Kanageswari a/p Muruly came to her house at Taman Nusa Bestari to visit and to give some money to Eric and Jeevabalan. It was then a commotion erupted between Kanageswari and the deceased as a result of the deceased having an illicit sex with Malathi. Kanageswari scolded the deceased and then Eric quarrelled with the deceased and in the ensuing quarrelled, Eric hit the deceased with crutches used by the deceased on the head. As a result of the hit by Eric on the deceased’s head, the deceased fell to the ground. They wanted to bring the deceased to the clinic for treatment but was refused by the deceased. They took care of the deceased by giving him food and drink until one day they realised the 10 deceased was dead. Neither Eric, Kanageswari nor Jeevabalan informed the Appellant of the hitting incident until the deceased had passed away. [23] On 14.12.2014, the Appellant brought Eric and Jeevabalan a/I Muruly to Kuala Lumpur by bus. The Appellant said that she was informed by Eric that he had contacted a friend named Maniam to carry the deceased body out of the house as the body had started emitting a putrid smell. Eric had told the Appellant that he together with Maniam and a few other men had carried out a clean-up the interior of the house as it started to emit a putrid smell of a decomposed body. [24] The Appellant said that the angry voice which SP12 heard on the night of 2.12.2014 was not her voice as she had left the said house. The Appellant explained the voice that SP12 heard could be the voice of her daughter Kanageswari whose voice was quite similar to her voice. [25] The Appellant denied that she had shown SP11 the location of the house at Taman Nusa Bestari 2 because SP11 would have known the location of the house during the initial investigation following her arrest at the New Town Hotel, Petaling Jaya. [26] The Appellant denied that she gave the information as in P29 to SP11. What the Appellant told SP11 was that she stayed at the house and in the said house Eric had told her that he had hit the deceased. The Appellant claimed that she had never told SP11 that she had hit the deceased using the crutches, metal chain and padlock. The Appellant also denied that she had removed the furniture from the house and placed them under the porch or elsewhere. 11 [27] SD2 (Givanaiyaki a/p Muruly) testified by way of a witness statement which was marked as PSSD2.The witness said between 25.11.2014 until 14.12.2014 she resided in Singapore at an address at Block 116, Bishan Street 12, #02-38, Singapore 570116. During the period between 25.11.2014 until 14.12.2014 she had been in contact with the Appellant almost every day. SD2 was aware that the Appellant had left the house due to marital problems. She said that after the Appellant left the house, the Appellant had started calling SD2 daily because the Appellant has no place to stay and spent her nights at her late husband's house at No.715, Jalan Jambu Bol 5, Taman Muhibbah, Kulai, Johor. The house has no electricity and water connection. The witness said that the last time that she went to the house at No: 715 was sometime around Deepavali, 2014. The witness knew that the address at No: 715 had no electricity and water connection because the Appellant sent to her pictures of the house lighted only with candles. She wanted to bring the Appellant to stay in Singapore with her but the Appellant had lost her international passport. The witness stated that her mother/Appellant was at the house No: 715, Jalan Jambu Bol 5, Taman Muhibbah, Saleng, Kulai. Finding at the end of defence case [28] At the end of Defence case, his Lordship found, among others, the defence had failed to prove the alibi evidence on the balance of probabilities. His Lordship found the Appellant and SD2 were not at the address given in D60 but was at the house No: 4 K, Jalan NB2 Taman Nusa Bestari 2, Skudai where the murder took place. His Lordship further found the version of the defence was riddled with inconsistencies. The Appellant testified that it was 12 Eric who assaulted the deceased with crutches on the head but the defence had not called Eric to substantiate the evidence of the Appellant. Finally, his Lordship concluded the defence failed to raise any reasonable doubt on the prosecution’s case and the prosecution had succeeded in proving its case against the Appellant. Hence the Appellant was found guilty and sentenced to death by hanging. The Appeal [29] The Appellant listed 14 grounds in her Petition and they were: “1. Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila memutuskan bahawa pendakwaan telah pun membuktikan suatu kes prima facie untuk pertuduhan di bawah S302 Kanun Keseksaan terhadap perayu.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila tidak memutuskan bahawa kredibiliti saksi-saksi pendakwaan, khususnya tetapi tidak terhad kepada SP12 dan SP13, adalah terjejas.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila tidak memutuskan bahawa kegagalan pendakwaan mengemukakan laporan forensik ulat mayat daripada Unit Forensik Entomologi telahpun mengundang pemakaian anggapan bertentangan di bawah S.114(g) Akta Keterangan 1950 dan menyebabkan lompang yang serius dalam kes pendakwaan berhubung waktu kematian sebenar simati. 13

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila tidak memutuskan bahawa kegagalan pendakwaan memanggil Kanageswari, Chandramohan, Paramasivam, Jevabalan dan Eric Roy telahpun mengundang pemakaian anggapan bertentangan di bawah S. 114(g) Akta Keterangan 1950 dan menyebabkan lompang yang serius dalam kes pendakwaan berhubung siapa dan berapa ramai orang yang mendiami rumah No. 4K, Jalan NB2, Taman Nusa Bestari 2, Skudai, Johor.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila membuat dapatan bahawa keterangan di bawah S27 Akta Keterangan 1950 terhadap perayu diterima masuk sebagai keterangan.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana tersalah arah dirinya di bawah undang-undang apabila memutuskan bahawa keterangan di bawah S27 Akta Keterangan boleh berdiri sendiri dan tidak tertakluk kepada kerelaan di bawah S24 Akta Keterangan.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dan undang-undang dan fakta apabila tidak memutuskan bahawa keterangan perayu di bawah S27 Akta Keterangan, 1950 sekiranya diterima masuk sebagai keterangan sekalipun tidak menunjukkan ke bersalahan terhadap perayu di bawah S302 Kanun Keseksaan.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana khilaf dalam undang-undang dan fakta apabila tidak membuat dapatan bahawa kehadiran beberapa orang di rumah No. 4K, Jalan NB2, Taman Nusa Bestari 2, Skudai, Johor untuk mencuci menjadikan mereka terlibat dalam kes di sini. 14

Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah khilaf dari segi undang-undang dan fakta apabila tidak menerima pembelaan alibi perayu.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana tersalah arah dirinya di bawah undang-undang apabila memutuskan bahawa perayu telah pun gagal membuktikan alibinya di atas imbangan kebarangkalian.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah khilaf dari segi undang-undang dan fakta apabila tidak memutuskan bahawa Eric Roy adalah orang yang berkemungkinan menyebabkan kematian simati.

Yang Arif Hakim Mahkamah Tinggi yang tersalah arah dirinya apabila meletakkan beban di bahu pembelaan untuk memanggil Eric Roy bagi membuktikan pembelaan perayu bahawa Eric Roy adalah orang yang memukul simati dengan topak ketiak (crutches) di kepala simati sambil disaksikan oleh anak-anak perayu yang lain iaitu Kanageswari dan Jeevabalan dan menyebabkan kematian simati dan seterusnya membuang mayat simati.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah khilaf dari segi undang-undang dan fakta apabila tidak memutuskan bahawa keterangan perayu di dalam pembelaannya telah pun menimbulkan keraguan yang munasabah di akhir kes pembelaan.

Yang Arif Hakim Mahkamah Tinggi yang bijaksana telah khilaf dari segi undang-undang dan fakta apabila memutuskan 15 bahawa pendakwaan telah pun berjaya membuktikan kes terhadap perayu melampaui keraguan yang munasabah.” [30] However, before us, the learned counsel for the Appellant confined his submission on grounds which may be summarised as follows:

(a) There was a material gap in the prosecution case when the prosecution failed to call the other witnesses present in the house;

(b) The learned trial judge misdirected himself in law in handling the defence put forward by the Appellant; and

(c) The learned trial judge had erred when he relied on circumstantial evidence to convict the Appellant when the circumstantial evidence as presented in this case fell short of a prima facie case. Our Deliberation and Decision [31] Regarding the first ground, that is there is material gap in the prosecution’s case, it was submitted by the learned counsel for the Appellant that the learned trial judge had erred when his Lordship did not invoke an adverse inference against the Prosecution for failure to call Kanageswari a/p Muruly, Chandra Mohan a/l Ramachandaran, Paramasibam a/l Elanggo, Eric a/l Roy Maniam and Jeevabalan a/l Muruly in the course of its case. The learned Deputy Public Prosecutor (DPP) on the other hand submitted that the prosecution has the unfettered power as to who it wishes to call as its witness. As long as there is no gap in the prosecution’s case, no adverse inference could be invoked against the prosecution. 16 [32] We had the opportunity of perusing the appeal records which includes the notes of proceeding, the relevant exhibits and the learned trial judge’s ground of judgment. The evidence of the investigating officer DSP Tan Seng Lee (SP 13), shows Kanageswari a/p Muruly, Chandra Mohan a/l Ramachandaran, Paramasibam a/l Elanggo, Eric a/l Roy Maniam and Jeevabalan a/l Muruly were arrested by IPD Petaling Jaya in connection with this case. They were suspected to be involved in the murder of the deceased. Arrest Report Sungai Way Report: 18353/2014 was lodged by the arresting officer ASP Kwek Kian Yap pertaining to the said arrest. However these suspects were ordered to be released without any bond and they were to be called as witnesses during trial. During trial, the prosecution failed to locate Kanageswari, Chandra Mohan, Paramasibam, Jeevabalan and Eric. [33] The prosecution then, purportedly relying on Section 32(1) (i) of the Evidence Act, 1950 (“Evidence Act”) applied for the statements recorded from these suspects as parts of the prosecution’s evidence but it was also on the suggestion of the DPP that the statements were marked as ID55 to ID59 respectively. Until the end of the case, there was no ruling made as to whether these statements were received and marked as exhibits. In the circumstances, it is our considered view that the statements were not admitted into evidence in court. [34] In any event, it is also our considered view that these statements could not have been admitted as evidence for the simple reason that the pre-condition of Section 32 (1) of the Evidence Act was not fulfilled. It is trite law that before the court could admit the statement of witness as evidence under Section 32 (1) of the Evidence Act, the condition precedent contemplated 17 under the section must be satisfied. The condition precedent the prosecution ought to satisfy in the present case was either to prove that the witnesses could not be found or that their attendance could not be procured, without an amount of delay or expenses. Where no diligent search and reasonable exertion were made to procure the witnesses, the court could not come to a finding that the witnesses could not be found and therefore their statements could not be admitted under the section. Mere ignorance of the whereabouts of the witnesses is not sufficient to invoke the section. It stands to reason that unless stringent conditions are prescribed and fulfilled, the established rule against the reception of hearsay evidence would be eroded; courts would have to accept as evidence statements which may not stand the vigour of cross-examination had the makers been called to give evidence1. [35] In this case, we observed that the prosecution tried to introduce the statements through DSP Tan Seng Lee but the officers who purportedly tried to locate the witness were ASP Mohd Shahril bin Abu Bakar and Inspector Kamarul Aripin bin Abd Rashid; both were not called as witnesses. There was also a failure to do the most basic to ensure the attendance of these witnesses which were to release them on bond. What the prosecution did was merely put up a notice at the address at Jalan Teratai 1 Taman Indraputra asking the Kanageswari to come forward; contacted the newspaper for an advertisement appealing for the witnesses to come forward. Even then, SP13 said he did not receive any feedback when the advertisement was published or was indeed published because it all depends on the availability of space. Even the address purportedly visited by the police to locate Kanageswari and to put up the notice seemed not that 1 Federal Court Case Sim Tiew Bee v PP [1973] 2 MLJ 200 18 of Kanageswari whose correct address was No 577, Jalan Teratai 36/1 Taman Indahpura and not Jalan Teratai 1, Taman Indraputra. As such, we find what was done in this case to locate the witnesses cannot by any stretch of imagination be said to be sufficient to establish that the makers of ID55- 59 cannot be found. Thus the prosecution could not rely on Section 32(1) to admit these statements as evidence. [36] Regarding the prosecution’s discretion as to who it wishes to call as its witness, the law is clear that the prosecution must have in court all witnesses from whom statements have been taken, but they have a discretion whether to call them or not. (See Teh Lee Tong v PP [1956] MLJ

194.) That discretion, however, must be exercised having regard to the interests of justice, which includes being fair to the accused (per Lord Parker CJ in R v Olivet [1965] 3 All ER 116 at p 122: [1965] 2 WLR 1028 at p 1035), and to call witnesses essential to the unfolding of the narrative on which the prosecution’s case is based, whether the effect of their testimony is for or against the prosecution (per Lord Roche in the Ceylon Privy Council case of Seneviratne v R [1936] 3 All ER 36 at p 49, applied in R v Nugent [1977] 3 All ER 662; [19771] 1 WLR 789)2. [37] In this case, the evidence of the prosecution’s own witness clearly showed there were others in the house i.e. the “cleaners” who had come to clean the house. The Investigating officer agreed that if the deceased died in the house at Nusa Bestari and the body was found at Taman Munshi Ibrahim that would require some form of transportation. According to SP13, it was impossible for a woman to carry the body to Taman Munshi Ibrahim. 2 Supreme Court Case Ti Chuee v Public Prosecutor [1995] 2 MLJ 433 19 SP13 also confirmed Kanageswari’s photographs were all over the house and she was the person who signed the tenancy agreement of the house where the murder was alleged to have occurred. From the factual matrix of this case, we are constrained to agree with the learned counsel for the Appellant that these witnesses Kanageswari, Chandra Mohan, Paramasibam, Jeevabalan and Eric, whose statements were recorded by the police are material witnesses for the unfolding of the narrative upon which the prosecution’s case is based. This is especially so in a case like this where the prosecution relies solely on circumstantial evidence to connect the Appellant to the murder. [38] Without the evidence of these witnesses, whose attendance could have been procured by the prosecution given their detention/arrest together with the Appellant and related to the same case involving the Appellant, the failure to produce them had created a material gap in the prosecution case. This we say despite the law that it is not for the prosecution to negate the defence of an accused person but for someone whose role in the incident is as important as these witnesses, failure to produce them given their availability amounts to a suppression of evidence as decided in Munusamy v PP [1987] 1 MLJ 492. In this regard, it is also pertinent to refer to the Federal Court's decision in Lee Kuan Kok v PP [2009] 5 MLJ 301 which held that: “The Investigating officer's failure to investigate this allegation despite being informed of this fact during investigation was a serious omission. An inference in the accused's favour ought to have been drawn by the trial judge at the close of the prosecution case when the investigating officer's failure was brought to light. If so, doubt would have been cast upon the evidence of the investigating officer." 20 [39] For the above said reasons, we are of the considered view that there are merits in the first ground posited by the Appellant. [40] Regarding the second ground, it was submitted by the learned counsel for the Appellant that the learned trial judge misdirected himself in law in handling the defence put forward by the Appellant. In dealing with the Appellant defence, his Lordship said at page 50 of his ground of judgment, among others: “The court found that the defence had failed to prove the defence of alibi on the balance of probabilities. The court found that the accused and SD2 were not at the address given in D60 but was at the house No 4K, Jalan NB2, Taman Nusa Bestari 2, Skudai where the murder took place. The Court found that the version of the defence were riddled with inconsistencies. The accused had testified that it was Eric a/l Roy Maniam who had assaulted the deceased with the crutches on the head. The defence had not called Eric to substantiate the evidence of the accused”. [41] Going through the ground of judgement, we are of the considered view, with due respect to his Lordship, it was wrong for his Lordship to use the “balance of probabilities test” and to impose a duty on the Appellant to call Eric. First and foremost, it is pertinent to note that Eric whose statements was recorded by the police was one of the material witnesses necessary for the unfolding of the narrative upon which the prosecution’s case is based. He was supposed to be called as a witness by the prosecution but was not called. Eric was also not offered to the defence. It is not the duty of the defence to fill any gap in the prosecution’s case. In Yau Heng Fang v Public Prosecutor [1985] 2 MLJ 335 the Supreme Court decided as follows: 21 "The object of section 402A(1) is to make provision for a written notice to be given by the Defence to the Public Prosecutor if the defence of alibi is to be raised at the trial, and section 402A(2) merely provides the particulars required to be given in such notice. Nothing more should be read in that section, and we do not think that it is the intention of the legislature by that section in the Criminal Procedure Code to introduce a new legal burden on the accused to establish his defence. It is of course for the defence to adduce evidence to establish the defence of alibi, but there is nothing in the section to justify the interpretation that the 'reasonable doubt' test has now been replaced by a statutory burden placed on the accused to prove his alibi on the balance of probabilities. In our judgment the test has not changed. What the learned Judge should consider is whether the evidence adduced by the appellant for the purpose of establishing his alibi had raised a reasonable doubt in the prosecution case, and not whether such evidence had created a reasonable doubt as to the appellant's innocence." (Emphasis added) [42] The third and final ground is allegation that the learned trial judge had erred when he relied on circumstantial evidence to convict the Appellant when the circumstantial evidence as presented in this case fell short of a prima facie case. As alluded to earlier, his Lordship relied on circumstantial evidence to find a prima facie case against the Appellant. His Lordship observed in his ground at page 38 and 39 of Volume 1 Appeal Record as follows: “As regard the 3rd and 4th ingredients of the offence, the Court was fully appraised of the fact that there were no eye witness who saw the accused used any of the hard object such as a pair of crutches to hit the deceased on the head which according to the post-mortem report had caused death due to “Blunt Trauma to the Head'. The prosecution in this instant was relying on circumstantial evidence of witness of SP 12 a neighbour who 22 stayed at an address No: 6, Jalan NB2 16/1, Taman Nusa Bestari 2. According to the testimony of SP12, the accused and an Indian man stayed at address No: 4, Jalan NB2 16/1, Taman Bestari 2. No one else stayed at the said address other than the accused and the Indian man (deceased). The critical part of SP12 testimony was that she heard quarrelling coming from the said house on 2.12.2014. The material time SP12 was in her kitchen when she heard the angry voice of the 'aunty' (accused) shouting loudly and followed by a voice of a man groaning in pain loudly. She heard the said voice once or twice and it lasted for an hour. SP12 further testified that a few days after the incident on 2.12.2014 she did not see the accused and the deceased any more. The witness was able to identify the 'aunty' as the accused sitting in the dock in Court. She then testified that putrid smell like a decomposed body being emitted from house where the accused was staying. The smell was so horrible that she and her husband were force to come out from their house and tried to trace where the putrid smell was but was not successful. The witness also testified that she saw cleaners came to the said house and clean up the house and the soap water from the detergent used have also emitted the putrid smell. She also saw the fixtures from inside the said house were place in the porch of the house.” [43] The law on circumstantial evidence is trite. The onus on the prosecution when the evidence is of a circumstantial in nature is a heavy one and the evidence must point irresistibly to the conclusion of the guilt of the accused. If there are gaps in it then it is not sufficient3. The Federal Court in Public Prosecutor v. Mohd Radzi bin Abu Bakar [2005] 6 MLJ 393 enumerated guidelines for a trial court at the close of the prosecution's case as follows: - "For the guidance of the courts below, we summarise as follows the steps that should be taken by a trial court at the close of the prosecution's case: 3 Chan Kim Siong v Public Prosecutor [1968] 1 MLJ 36 23

(i) At the close of the prosecution's case, subject the evidence led by the prosecution in its totality to a maximum evaluation. Carefully scrutinise the credibility of each of the prosecution's witnesses. Take into account all reasonable inferences that may be drawn from that evidence. If the evidence admits of two or more inferences, then draw the inference that is most favourable to the accused;