Faizal bin Toed v Pendakwa Raya (N-05(M)-191-05/2016)

(a) sampel tanah dari tempat kejadian adalah sama dengan sampel tanah dijumpai di dalam kereta Iswara yang dirampas;

(b) DNA perayu berpadanan dengan kesan air mani pada swab (R5 dan R6) milik si mati, seluar dalam (R8), blaus (R100) dan seluar jeans (R11) milik si mati; 6

(c)

(d) SP14 juga mengesahkan perayu telah menjual barang kemas, dan menurut SP6 si mati ada memakai barang kemas pada hari kejadian; dan

(e) SP6 turut mengesahkan pemain cakera padat yang ditemui di dalam kereta Proton Iswara milik perayu sebenarnya merupakan cakera padat milik si mati. SP6 telah mengecam cakera itu kerana dia yang telah membelinya. Keputusan di Akhir Kes Pendakwaan [12] Di akhir kes pendakwaan, Hakim bicara, setelah membuat penilaian yang maksimum, mendapati dan memutuskan: “Conclusion At the end of the prosecution’s case:

At the end of the prosecution case, after a maximum evaluation of the each and every material prosecution witnesses, I find that they are credible witnesses. Their evidence proved the elements in the charge against the Accused.

Having considered the material and the evidence that were before me, I am satisfied that there are cogent circumstantial evidence which goes to establish that it was the accused who was with the deceased before she died: i) The DNA evidence linked the accused to the deceased on the morning of the 27th March 2012; ii) The conduct of the accused when he led the police to the gold items and the Kenwood CD player shows the knowledge of the deceased of the gold items belonging to the deceased and the CD player in the car WJN 1578; iii) the similarity in the soil composition found in the car of the Accused with the soil sample taken at the place where the body was found; 7 iv) the pattern or marks on the neck of the deceased which bore a striking similarity to the belt P90A which was seized in the accused’s room, when viewed together forms strong circumstantial evidence against the Accused.

I am satisfied that the prosecution had proven the elements of the charge and that a prima facie case against the Accused on the charge had been proven.

Hence I called the Accused to enter his defence on the charge.” Kes Pembelaan [13] Dalam pembelaannya, perayu menyatakan bahawa dia telah mengenali si mati sejak Februari 2012. Pada hari kejadian, 26.3.2012, perayu bertugas di Kompleks Sukan Komuniti Simpang Pertang, Jelebu bermula dari pukul 6.00 petang hingga 7.00 pagi keesokan hari. Perayu mengakui ada keluar sekejap ketika bertugas pada sekitar pukul 11.00 malam untuk makan di warung milik si mati. Menurut perayu, si mati ada berbual dengannya dan memaklumkan si mati akan bertolak ke Seremban selepas warungnya ditutup untuk bertemu dengan teman lelakinya yang baru. Perayu mengatakan walaupun si mati telah berkahwin, namun dia mempunyai ramai teman lelaki. Pada sekitar pukul 2.30 pagi, si mati ada datang ke tempat perayu bekerja dan mereka telah melakukan hubungan seksual di dalam sebuah bilik di dewan tersebut. Perayu tidak menafikan bahawa DNA yang ditemukan pada blaus, jeans, dan seluar dalam si mati ialah DNA miliknya kerana mereka ada melakukan hubungan seksual, namun dia menafikan membunuh si mati kerana setelah selesai si mati telah bergerak ke Seremban. Pada pukul 7.00 pagi, setelah tamat waktu 8 bekerja, Sufian bin Mohemmed (SP16), iaitu rakan sekerjanya, telah datang dan mengambil alih shif/tugasan daripada perayu. [14] Berkenaan dengan tanah di dalam kereta milik perayu yang dikatakan mempunyai komposisi yang sama dengan tanah di tempat mayat si mati ditemukan, perayu menyangkal dia ada ke Rantau. Menurut perayu, sewaktu kereta Iswara tersebut diambil daripada ibu bapanya seramai 10 orang anggota polis telah menggeledah kereta tersebut dan berkemungkinan tanah tersebut dibawa oleh mereka. Perayu juga menafikan tali pinggang yang dirampas dari rumah ibu bapanya merupakan tali pinggang miliknya. Selain itu, perayu juga menafikan cakera padat berkenaan milik si mati, sebaliknya cakera padat tersebut dikatakan milik bapanya. Keputusan Di Akhir Pembelaan [15] Di akhir keseluruhan kes, Hakim bicara mendapati dan memutuskan: “240. After hearing the defence of the accused, a substantial part of it are bare denial.

As to the alibi defence raised, it was doomed from the start. The accused’s family could not verify his whereabouts from 12 midnight until 6 a.m on 27.3.2012 as they were never at the place of work at the Dewan Komuniti. Even if the attendance book of Iba Security Sdn Bhd was produced, it still would not be able confirm the presence of the Accused at all times between 12 midnight until 6 a.m. on 27.3.2012. Hence the alibi defence fails.

The defence has failed to raise a reasonable doubt on the case of the prosecution. The prosecution has proven its case beyond reasonable doubt against the Accused on the charge preferred against him.” 9 Isu-isu Rayuan [16] Dalam rayuan ini, peguam yang terpelajar bagi pihak perayu telah membangkitkan tiga isu yang berikut:

(a) Hakim bicara telah terkhilaf apabila menerima keterangan mengikut keadaan “circumstantial evidence” yang dikemukakan oleh pendakwaan sebagai mencukupi untuk membuktikan satu kes prima facie ke atas perayu;

(b) Hakim bicara telah terkhilaf apabila pembelaan alibi yang dibangkitkan oleh perayu ditolak dan tidak dipertimbangkan; dan

(c) Hakim bicara telah terkhilaf apabila gagal memperhalus dan mempertimbangkan pembelaan perayu dengan sewajarnya. [17] Mengenai isu-isu tersebut, peguam menegaskan:

(i) Bagi isu (a), keterangan mengikut keadaan (circumstantial evidence) yang ada dalam kes ini tidak mencukupi untuk membuktikan satu kes prima facie terhadap perayu. Perayu bukanlah orang terakhir yang dilihat bersama si mati kerana menurut keterangan SP7, dia melihat si mati pulang sendirian dengan memandu kereta Wira bernombor NAP 7570 pada sekitar pukul 2.00-2.30 pagi. Selain itu, contoh tanah yang diambil dari kereta Iswara yang digunakan oleh perayu yang dikatakan sama komposisinya dengan tanah yang diambil dari tempat kejadian juga bukanlah satu keterangan mengikut keadaan yang kukuh dan kuat untuk menyatakan perayu ialah pembunuh si mati. Terdapat kemungkinan bahawa tanah 10 tersebut telah diletakkan atau dimasukkan untuk mengaitkan perayu. [ii] Dalam kes ini juga, perayu tidak menafikan dia telah melakukan hubungan seksual dengan si mati dan oleh sebab itulah DNA miliknya (semen dan darah) terdapat pada blaus, seluar jeans, dan seluar dalam si mati. Namun, perayu menafikan sekeras-kerasnya dia ialah pembunuh yang dicari kerana si mati telah beredar ke Seremban selepas mereka berdua selesai melakukan hubungan seksual. Menurut peguam perayu juga, kesalahan melakukan hubungan seksual sesama pasangan yang telah berkahwin ialah satu kesalahan “marital affairs” dan bukanlah satu petunjuk yang pasti kebersalahan perayu untuk melakukan pembunuhan. Peguam perayu juga menyatakan hakim bicara telah terkhilaf dalam menghayati dan mengiktiraf persamaan fakta kes kerana memutuskan dapatan undang-undang dalam kes PP v Hanif Basree bin Abdul Rahman [2008] MLJU 116 tidak terpakai dalam kes ini sedangkan Hakim bicara di perenggan 71 alasan penghakimannya mengakui perayu ada menjalinkan hubungan seksual dengan si mati, namun membuat dapatan yang salah berkaitan isu DNA. [iii] Berkaitan tanda yang terdapat pada leher si mati yang dikatakan oleh SP4 sebagai corak yang berkemungkinan terhasil daripada jerutan tali pinggang yang mempunyai buckle hanyalah satu anggapan semata-mata. Sekiranya benar tali pinggang (ekshibit P9A) tersebut digunakan oleh perayu untuk 11 menjerut/mencekik leher si mati tentulah kesan DNA, darah, peluh, atau kulit boleh dikesan darinya, namun tali pinggang yang dirampas tersebut tidak langsung mempunyai apa-apa kesan DNA. Oleh yang demikian, anggapan corak yang dikatakan oleh SP4 hanyalah sekadar anggapan dan pendapat SP4 tanpa apa-apa keterangan sokongan. [iv] Bagi isu (b), peguam perayu mendakwa pihak pendakwaan telah gagal menjalankan siasatan terperinci terhadap notis alibi yang dikemukakan oleh perayu. Dihujahkan notis tersebut adalah sangat material untuk memaklumkan keberadaan perayu ketika kejadian. Notis alibi berkenaan dikatakan telah disiasat oleh ASP Alagesan (SP23), pegawai penyiasat yang telah mengambil alih kes ini daripada pegawai penyiasat yang terdahulu yang telah meninggal dunia. SP23 ketika ditanya sewaktu pemeriksaan balas ke atas notis alibi ini hanya menjawab “ada siasat tetapi tidak ingat”. Hakim bicara telah terkhilaf apabila memutuskan terdapatnya keraguan ke atas pembelaan alibi oleh perayu semasa di peringkat pendakwaan dan ulasan mengenainya dibuat melalui alasan penghakiman berkenaan pembuktian di akhir kes pendakwaan. Ini merupakan satu salah arah yang serius kerana pembelaan alibi sepatutnya dinilai daripada segi probatifnya apabila satu kes prima facie telah dibuktikan dan saksi-saksi pembelaan alibi telah dipanggil memberikan keterangan. Dalam kes ini pula, Hakim bicara telah menolak pembelaan alibi di peringkat kes pendakwaan lagi. 12 [v] Bagi isu (c), peguam perayu menghujahkan hakim bicara gagal membuat penilaian yang tepat ke atas keterangan pembelaan perayu dan saksi-saksi pembelaan yang lain. Hakim bicara telah membuat penilaian bersifat prejudis dan bukannya penilaian secara kritikal terhadap keseluruhan keterangan pembelaan perayu dan saksi-saksi yang dikemukakan untuk menyokong keterangan pembelaan. Hakim bicara juga telah gagal mematuhi peruntukan seksyen 182A Kanun Prosedur Jenayah iaitu di akhir kes pembelaan, keseluruhan keterangan haruslah dirujuk, dinilai, dibandingkan dan diperhalusi sama ada pembelaan perayu berjaya menimbulkan keraguan yang munasabah terhadap kes pendakwaan atau sebaliknya. Atas alasan-alasan dinyatakan, peguam perayu menghujahkan sabitan ke atas perayu dan hukuman gantung sampai mati yang telah dikenakan adalah tidak selamat. [18] Timbalan Pendakwa Raya dalam menyangkal hujahan peguam perayu menyatakan hakim bicara tidak terkhilaf dalam membuat keputusan menyabitkan perayu dan seterusnya menjatuhkan hukuman gantung sampai mati atas kesalahan membunuh si mati. Ini kerana keterangan sedia ada menunjukkan bahawa perayu telah berniat melakukan pembunuhan dan perlakuan perayu yang gagal bekerja pada hari berikutnya selepas kejadian dan cubaan menyembunyikan diri adalah jelas relevan di bawah s 8 dan s 9 Akta Keterangan 1950. Selain itu, isu berkaitan saksi berkepentingan iaitu SP13 (ibu perayu) dan SD3 (bapa perayu) telah dipertimbangkan dengan betul oleh hakim bicara dan diperjelaskan dalam alasan penghakiman beliau bahawa keterangan SP13 tidak disokong 13 dengan apa-apa keterangan sokongan dan keterangan yang diberikan hanyalah sekadar dakwaan semata-mata. Tambahan pula SP 13 ialah ibu perayu dan keterangannya perlu dinilai dengan berhati-hati oleh mahkamah. [19] Berkaitan dengan isu alibi pula, dihujahkan hakim bicara telah membuat dapatan yang tepat apabila memutuskan pembelaan alibi dibangkitkan oleh perayu dalam notis ekshibit D86 gagal memberikan butiran yang lengkap untuk membolehkan pembelaan alibi diguna pakai. Pembelaan alibi yang dibangkitkan hanyalah sekadar penafian semata-mata dan perayu gagal memberikan butiran dan nama untuk pengesahan pembelaan alibi. Oleh yang demikian, beban pembuktian pembelaan alibi berpindah kepada perayu untuk membuktikannya. Perayu juga menafikan dia membunuh si mati, namun dia mengakui dia ada menjalinkan hubungan seksual dengan si mati sebelum si mati beredar ke Seremban. Keterangan ini tidak pernah dibangkitkan sewaktu kes pendakwaan, oleh yang demikian, keterangan ini hanyalah bersifat pemikiran terkemudian ‘afterthought’ oleh perayu. Atas alasan-alasan dinyatakan, pendakwa raya memohon agar sabitan dan hukuman gantung sampai mati dijatuhkan oleh hakim bicara dikekalkan dan disahkan. Keputusan Kami [20] Kami telah dengan cermat mempertimbangkan penghujahan kedua-dua pihak dan keterangan sepertimana dicatatkan dalam rekod. Kami mendapati tiada kecacatan atau kelemahan dalam alasan penghakiman Hakim bicara yang bijaksana. Beliau telah membuat satu penilaian yang amat baik dan komprehensif merangkumi setiap isu yang dibangkitkan. 14 Hakim bicara dengan tepat telah, di akhir kes pendakwaan, memutuskan setiap elemen pertuduhan telah dibuktikan oleh pendakwaan. Tidak disangkal bahawa si mati telah meninggal dunia akibat daripada kecederaan yang dialami dan dikenakan terhadapnya. Daripada keterangan yang dibuktikan, perbuatan yang mengakibatkan kecederaan tersebut lebih tepat terjatuh dalam kategori perbuatan di bawah s 300 (a) dan (c) Kanun. Selanjutnya, berdasarkan keterangan ikut keadaan yang melimpah ruah, kami bersetuju dengan dapatan Hakim bicara bahawa perayu lah orang yang mengakibatkan kecederaan-kecederaan tersebut. Kami bersetuju dengan keputusan Hakim bicara di akhir kes pendakwaan itu. [21] Setelah menelaah keterangan dalam rekod, kami juga bersetuju dengan Hakim bicara bahawa perayu telah gagal membangkitkan keraguan yang munasabah ke atas kes terhadapnya. Isu-isu yang ditimbulkan dan dihujahkan di hadapan kami telah diulas dengan betul oleh Hakim bicara. Pada pandangan kami, teras cabaran perayu dalam rayuan ini lebih ditumpukan kepada identiti pelaku (di sini perayu) yang menyebabkan kecederaan ke atas si mati. Seperti mana dinyatakan, identiti si mati, kecederaan yang dialaminya, dan kesan kecederaan tersebut bagi maksud s 300 (a) dan (c) Kanun tidak dicabar oleh perayu. Yang dicabar oleh perayu melibatkan isu tiadanya keterangan ikut keadaan yang mencukupi untuk mengaitkan dirinya dengan kematian si mati itu viz. isu

(a). [22] Mengenai isu (a) ini, bertentangan dengan hujahan peguam perayu, kami mendapati adanya keterangan ikut keadaan yang melimpah ruah 15 dalam kes ini terhadap perayu. Kami bersetuju dengan dapatan Hakim bicara yang berikut: “Element 3: That the injuries were inflicted by the act of the Accused person:

The central issue in this case is the identity of the person who caused the death of the deceased.

There was no eye witness to the crime, hence the prosecution relied heavily on circumstantial evidence to link the Accused as the person who caused the death of the deceased. The circumstantial evidence relied on, are: i) Evidence of PW 7, who said that the Accused was the last person seen with the deceased (hereinafter referred to as “the evidence of PW 7”); ii) Evidence of the composition of the soil sample that was found in the car WJN 1578 (driven by the Accused at the material time) at the footwell at the driver’s seat of the car matched with the composition of the soil where the deceased’s body was found by PW 3 (hereinafter referred to as “the soil sample evidence”); iii) The DNA of the seminal stains found on the underwear and blouse of the deceased matched with the DNA sample of the Accused. There were blood stains found on the underwear of the deceased, R10 and jeans worn by the deceased, R 11 which was stained with blood whereby the DNA matched with that of the Accused (hereinafter referred to as “the DNA evidence”). iv) The pattern of the injury to the neck of the deceased bears a similarity in pattern to the belt (P9A) which was allegedly worn by the Accused at the time of the incident. This belt was seized from the room of the Accused. (hereinafter referred to as the “evidence of the belt”). v) Evidence from PW 14 that on the morning at 9.30 a.m. of 27.3.2012, the Accused sold gold chain and locket belonging 16 to the deceased to PW 14 (hereinafter referred to as “the gold items’ evidence”); vi) The Kenwood CD player which was originally in the deceased’s car was subsequently found to be in the car driven by the Accused, ie WJN 1578 after the date of the murder (hereinafter referred to as “the evidence of the CD player”).

I shall now deal with each of the circumstantial evidence which were relied on by the prosecution. The Evidence of PW 7 :

PW 7 is the brother in law of the deceased who works at the food stall belonging to the deceased and her husband (PW 6). PW 7 said that on the day in question on 26.3.2012, he and his wife were working as usual at the food stall. The working hours was from 4 pm until 2 am the next day.

At around 11 pm that day on 26.3.2012, the deceased’s husband (PW 6) had gone home with his motorcycle whilst the deceased was still at the stall at the cash register at the counter. This was corroborated by the evidence of the deceased’s husband, PW 6 who said that he went back home around 11 pm as he was unwell. Home was about 5 minutes away by car.

According to PW 7 that night there were not many customers. The Accused came to the stall at around 11 p.m on 26.3.2012.

PW 7 said that he was able to recognize the Accused as the Accused often comes to the stall 2/3 times in a week. The Accused normally would come around 11 pm onwards.

It was also in evidence that PW 7 attended an identification parade on 25.4.2012 and could positively identified the Accused as the person who came to the food stall in March 2

When the accused came on that material day, he ordered some food and drinks from PW 7. PW 7 then went to the back of the stall, to prepare the drinks ordered by the Accused. At that time the 17 deceased was at the counter. PW 7 then saw the deceased sat together with the Accused at a table and was seen talking with the accused.

The Accused subsequently left the stall around 12 midnight and PW 7 went to the back to clean up before closing the stall for the day at around 1.30 am on 27.3.2012. The stall was closed around 2 am and PW 7 said he saw the deceased walking and going into her car leaving the stall. PW 7 subsequently closed the door of the stall and went home. That was the last that PW 7 saw the deceased.

The defence submitted that PW 7 was the last person who was with the deceased, not the Accused. Hence it is not correct to say that it was the Accused that was last seen with the deceased.

I have evaluated the evidence of PW 7 and I found that although he was the last person who was with the deceased, there is nothing to link him to the death of the deceased. Not an iota of evidence that could implicate PW 7 to the death of the deceased apart from the fact that he was the last person with the deceased in the early hours of the morning of 27.3.2012.

In any event it was not put to PW 7 that he was the one who had caused the death of the deceased.

As for the Accused, apart from the fact that he was seen talking to the Accused when he came to the stall on the night of 26.3.2012 before the incident, there are other evidence which link him to the deceased just before her death, which I shall elaborate later. The soil sample evidence:

It was in evidence that the traces of the soil found at the footwell of the car of WJN 1578 which was driven by the Accused on 27.3.2012 bears a striking similarity in composition to the sample of the soil found at the scene of the place where the body of the deceased was found. 18

It was the evidence of the prosecution that the soil sample at the scene where the body of the deceased was found, was collected by PW 17 (Inspector Tan Cheng Kiat) on 27.3.2012 at 11.50 am, upon the instructions of ASP Huzaimi bin Othman. The location of the soil sample collected by PW 17 was at the place where the body of the deceased was found, indicated as per the sketch plan as exhibited in P52. The location of the place where the body was found was at Sg Linggi, Kg Pasir Linsum, Rantau, Negeri Sembilan.

PW 21 had examined the car WJN 1578 on 30.3.2012 at around 7 pm at IPD Jempol whereby he collected samples of evidences from the said car. Although he collected various samples like hairs and swabbing of sweat (refer to pages 426-428 of the Notes of proceedings) from the car WJN 1578, what is pertinent here is the soil sample which he collected from the footwell of the car WJN 1578 at the driver’s seat. This was the soil sample that was sent for analysis.

PW 20, the chemist who did the analysis of the soil sample taken from the area where the deceased was found and the soil sample taken from the footwell of the driver’s seat of the car WJN 1578 said in evidence that the composition of the soil found at the place where the body was found and the soil sample found at the footwell from the car WJN 1578 at the drivers seat, are the same, and in all probability the soil found in the car WJN 1578 originates from the area where the body was found. PW 20 said he could only said the soil in the car WJN 1578 “berkemungkinan dari sumber yang sama (ie from the area where the body was found)” due to the absence of a database of the composition of soil in Malaysia (refer to page 418 of the Notes of proceedings).

This piece of evidence is challenged strongly by the defence. It was submitted by the defence that the car WJN 1578 had been “tampered with” by the police and that the soil evidence was “planted” by the police witnesses.

PW 13, who is the mother to the Accused, gave evidence that the police (more than 4 of them) came the first time searching for the accused on 28.3.2012 at 2 am at the address of No 157, Felda Sg 19 Lui Barat,Bandar Sri Jempol, Negeri Sembilan. Her evidence was that PW 9 (Inspector Shafirie bin Shaari) took the car WJN 1578 away which was parked outside the house. (page 281 and 365 of the Notes of proceedings). It is to be noted that there was evidence that at that point in time, there were 2 cars parked outside the house (WJN 1578 and BGN 5661) and the police chose to take the car WJN 1578 out for a ride. PW 13 further said that, later the police returned the car WJN 1578 at about 5 am. PW 13 said in evidence that when the police returned the car “awal suboh” the police told her that “Kereta tidak ada apa-apa” (page 282 of the Notes of proceedings). PW 13 identified Inspector Shafiri as the police who took the car WJN 1578 out that night and returned it back “awal suboh”.

It is not disputed that WJN 1578 was the car used by the Accused on the night of the incident.

PW 13 said that, apart from taking the car WJN 1578 out for a ride for purposes only best known to the police, on the night of 28.3.2012, the police did not seize anything else.

It was in evidence that, the police only seized the car WJN 1578 on 30.3.2012 from the wife of the Accused at the Accused’s house address at No 515, Felda Gugusan Raja Alias 4, Bandar Seri Jempol, Negeri Sembilan.

Hence the defence submitted that there was doubt as to what actually happened when the police came and took the car WJN 1578 in the early hours of 28.3.2012 and returned it back. The inference by the defence, is that the car WJN 1578 was taken out by the police and the soil was “planted” at the footwell of the driver’s seat of car WJN 1578, to match to the soil composition at the place where the body of the decased was found.

Further it was also submitted by the defence that there is no evidence to show that the soil composition at the place where the body of the deceased was recovered, is specific only to that area. There is a possibility that the soil composition at any other place in 20 Rantau having the same soil composition. Hence it was submitted on behalf of the defence that, the evidence of the findings of the soil which composition bore a similarity to the soil found in the foot mat of the car at the driver’s seat of WJN 1578, is neither here nor there, i.e does not prove anything.

As far as the evidence of PW 13 is concerned, I am cautious in accepting her evidence as she is the mother of the Accused and is thus an interested witness and non independent. I am mindful that there is no requirement in law for any form of corroboration for the evidence of interested witness to be accepted by the court. However, in view of the fact that PW 13 is the mother of the Accused, coupled with the absence of any other form of evidence to support what was said by PW 13, it renders the evidence by PW 13 as a mere allegation.

It is in evidence that the sample of soil taken from the place where the body of the deceased was recovered were collected by PW 17, who was a member of the police forensic team on 27.3.2012 at 11.30 am and it was sealed in a plastic container P50A and was given to the Investigating Officer to be sent for analysis.

The car WJN 1578 in which the sample of soil was found at the foot well of the driver’s seat was seized by the police from PW 19 (wife of the Accused) on 30.3.2012 at 6.30 pm. Thereafter an examination of the car and samples of hairs and soil were obtained from the car at around 7 pm on 30.3.2012.

The other samples taken from the car has no significance as analysis did not bear any positive results. Hence I will not deal with it here. Suffice to say that it was the soil at the foot mat at the driver’s seat of the car WJN 1578 that the prosecution submitted bore the incriminating evidence that linked the Accused to the crime scene as the soil sample bears a similarity in composition to the sample of the soil obtained at the place where the body of the deceased was found.

If the evidence of PW 13 is to be believed, that PW 9 (Inspector Shafirie bin Shaari) took the car WJN 1578 in the early hours of 28.3.2012 and “planted” the soil from the place where the body of 21 the deceased was recovered, onto the foot well of the car WJN 1578 at the driver’s seat, it does not make any sense for the police to return the car back to PW 13. There is the evidence that the car was only seized by the police 3 days later, on 30.3.2012 from the accused’s wife. The act of returning the car back in the early hours of 28.3.2012 would run the risk of the “planted” soil evidence being removed or dissipated, as there is every likelihood that the car may be cleaned or vacuumed within the 3 days prior to 30.3.2012 (that was the date when the car was officially seized by the police), by the owner.

It would make more sense if the police took the car WJN 1578 away in the early hours of 28.3.2012, “planted” the soil in the footwell of the car at the drivers seat and took the car to the police station for investigation, thus securing and ensuring that the evidence which had been “planted” earlier against the Accused, intact.

From the evidence of the prosecution’s witnesses, on 28.3.2012, when the police came to the address at No 157, Felda Sg Lui Barat,Bandar Sri Jempol, Negeri Sembilan, (which is the house of the father of the Accused), the intention of the police was to search for the Accused not to seize any items. This can be seen from the evidence of PW 21, Inspector Kentnorten when he said that on 28.3.2012, he went to the said address to search for the accused but he was not there. That was when he saw 2 cars parked at the right hand side of the house. The police checked on the 2 cars to see whether the Accused was there and nothing more. There was no items or belongings of the accused seized either.

Hence the evidence of PW 13 (that the police had taken the car WJN 1578 for about 2 hours and return it back), is incredible, apart from the fact that it is a mere allegation with no supporting evidence to back her story.

It was further submitted by the defence that, when the police came on 28.3.2012, the police had gone inside the car and took the car 22 away. The inference is that, the car had been contaminated. As far as this submission is concerned this is entirely based on the evidence of PW 13 which I cannot accept based on the reason above. This fact was also suggested by the defence during cross examination to PW 21 who denied vehemently.

There was no evidence that the police had gone into the car WJN 1578 in 28.3.2012. There was also no evidence of the police taking any keys of the car from the Accused’s father.

It was in evidence by PW 9, Inspector Shafirie bin Shaari that on 30.3.2012 at 6.30 pm that he had received instructions from the Investigation Officer of the case, ASP Wee Huat Nee, to seize a car WJN 1578. He and 8 of his team went to the address of No 515, Felda Gugusan Raja Alias 4, Bandar Seri Jempol, Negeri Sembilan (the house of the accused). There he met with PW 19, the wife of the Accused who gave the keys to the said car WJN

PW 9 seized the car and had driven the car himself to IPD Jempol. It was in his evidence that: “ …Saya telah membawa kereta tersebut ke IPD Jempol dimana saya sendiri telah memandu kereta tersebut. Saya telah memakai sarung tangan, menyarungkan sarung kaki plastik di bahagian kaki saya dan tempat duduk pula dilapik dengan menggunakan plastik bagi memastikan barang kes tidak tercemar.” The car WJN 1578 was subsequently handed over to the forensic officer, Inspector Kentnorten (PW 21) at IPD Jempol. It was PW 21 that did the examination of the car and took samples of evidence (which included the soil sample from the floor mat at the drivers side) from the car WJN 1578 which was on 30.3.2012 at 7 pm. This was the soil sample that was sent for analysis to PW 20.

From the evidence, PW 9 had said that he covered his hands and feet when he drove the car to the compound of IPD Jempol. He said that only him entered into the car and drove the car to IPD Jempol. 23 I have no reason to disbelieve him and neither is there evidence or facts that could discredit his evidence pertaining to the issue of the car WJN 1578 being contaminated.

The other issue raised by the defence is pertaining to the soil sample that there is no data base to state specifically that the crime scene area is the only area in Rantau having such soil composition. Hence it does not conclusively point to the guilt of the Accused. That, I agree. That evidence (evidence of the soil sample found in the car WJN 1578 matched with the soil sample found at the crime scene), on its own is not incriminating against the Accused, however this evidence must be taken together with other evidence to be effective against the Accused. It cannot be taken solely on its own. The DNA evidence:

The evidence of PW 26, the chemist confirmed that the DNA of the Accused was found from the seminal stains on the “inner” clothings (R5 and R6), panties (R 8), blouse R 10 and jeans (R11) of the deceased. From her analysis, PW 26’s findings are as follows: “i) terdapat DNA lelaki yang berpadanan dengan specimen darah berlabel Faizal Toed yang diperolehi dari kesan air mani pada swab R5 dan R6, Inner R8, seluar dalam R10 dan seluar jeans R 11. ii) Terdapat DNA lelaki yang berpadanan dengan specimen darah R1, berlabel Rozina binti Jaafar yang diperolehi dari kesan air mani pada swab R5 dan R6, blaus R7, inner R8, seluar dalam R10 dan seluar jeans R11. iii) terdapat profil DNA campuran lelaki dan perempuan yang diperolehi daripada kesan air mani pada blaus R7 dan kesan darah pada seluar dalam R10.” PW 26 found that the source to the specimen of blood S3 labeled “Faizal bin Toed” and R1 labelled “Rozina binti Jaafar” are the major contributors to the mixed DNA profile of male and female.

Further PW 26 said in evidence that: 24 “terdapat profil campuran DNA sekurang-kurangnya dari 2 orang individu dari kesan darah pada seluar jeans R 11. Sumber dari specimen darah S3 berlabel “Faizal bin Toed” merupakan penyumbang terbesar manakala sumber yang mewakili specimen darah R1 berlabel Rozina Bt Jaafar tidak dapat di kecualikan dari menjadi penyumbang minor kepada profil DNA campuran tersebut. Sumber yang diwakili dari specimen darah S1 berlabel M. Fadzil bin Ismail dan S2 berlabel Azman bin Ahmad adalah terkecuali sebagai penyumbang…”

These 2 names, i.e M. Fadzil bin Ismail and Azman bin Ahmad are individuals who I will elaborate later in this judgment. Apart from the chemist report of PW 26 that mentioned the names of M. Fadzil bin Ismail and Azman bin Ahmad, nowhere else in the evidence at the prosecution stage do these 2 names were ever raised.

Hence, it is without doubt that the Accused, at one point in time after he left the stall at around 12 midnight on 26.3.2012 had met again with the deceased in the early hours of 27.3.2012, at the time before her death.

It was not denied by the defence that the Accused did have sexual intercourse with the deceased in the early hours of 27.3.2012, but he denied causing the death of the deceased.

The defence cited the case of PR lwn Hanif Basree bin Abdul Rahman [2008] MLJU 116 where the central issue in that case was whether from the pathologist’s and chemist’s evidence, can it be irresistibly concluded that since the Accused was the last person to have sexual intercourse with the deceased, therefore the accused was the one who caused the death of the victim.

However, I need to point out that, the case of PR lwn Hanif Basree bin Abdul Rahman (supra) is not on all fours with the facts of our case herein. The facts in PR lwn Hanif Basree bin Abdul Rahman (supra) shows an overwhelming evidence of the presence of a third person by the following evidence, i.e.: i) the DNA of a third person on the brassiere of the victim that was used to tie the victim. 25 ii) There was DNA of the unknown male found from the nail clippings of the victim. iii) There were strands of hairs found on the victim’s comforter and bed sheet which belongs to the unknown male and the electrical cord used to tie the deceased’s legs had the unknown DNA of the male person. iv) There was also the evidence from the house mate, the security guard that said that there was a third man who was present in the Apartment after the deceased was found dead. v) There was evidence that that third person was still in the house when the housemates of the victims arrived home when they found the body.

Unlike the present case, there was no DNA evidence (except the Accused) found on the deceased or the clothings of the deceased, or any other from of evidence to show thw presence of any other individual.

This undoubtedly placed the Accused as the last person to be with the deceased before her death. Evidence of the belt (P9A).

It was in evidence that the police had seized a belt, P9a from the house at No 157, Felda Sg Lui Barat,Bandar Sri Jempol, Negeri Sembilan, which the Accused was staying at the material time.

This is the belt which the prosecution contended through the evidence of PW 4, Dr. Sharifah Safoorah, that has a texture which bore a striking resemblance to the pattern which can be found on the neck of the deceased. It was contended that the Accused had used the belt and compressed it on the neck of the deceased with such substantial force which caused the death of the deceased.

However the defence disputed: i) that the belt was taken from the house at No 157, Felda Sg Lui Barat,Bandar Sri Jempol, Negeri Sembilan (at the Accused’s father’ house) where the Accused was staying at the material time. 26 ii) That the Accused was wearing a belt on 27.3.2012; iii) That the belt was used to cause the death of the deceased as there is no DNA of the Accused found on the belt.

PW 13, the mother to the Accused in her evidence, stated that when the police came to her house on 30.3.2012, took some clothings of the Accused, but never any belt belonging to the Accused. However if one is to peruse PW 13’s evidence there was an instance where she said she could not identify the belongings of the Accused that was seized by the police, whilst on the other hand she said that the belt was actually non existence. This can be seen from her evidence at page 287 when she was referred to the exhibits P 31, P32A she said that: “Q: Kalau di ikutkan polis, polis kata ini barang yang dirampas daripada rumah makcik milik Faizal di rumah makcik. Mak Cik boleh cam barang ini? J: Mungkin hak dia. Saya tak cam. Saya tak bela dia. Yang bela isteri dia.”

When she was referred to the trousers, P33, whether it belongs to the Accused that was taken by the police from her house on 30.3.2012, she was unsure and said “Seluar saya tidak boleh cam” but she could identified the shirt by the company’s logo and his number on the shirt.

Subsequently, when she was referred to the belt, P90A, she was quick to response by saying “ Bukan, itu bukan anak saya punya” (page 288 of the Notes of Evidence)

However there is the evidence of PW 13 signing her name as acknowledgement in the Search List in exhibit P28 where it is clearly recorded therein that the police did seize “satu tali pinggang warna hitam Lambang “NY” which was marked as “T1” on 30.3.2012 at 10.50 pm at the address of No 157, Felda Sg Lui Barat, Bandar Seri Jempol, Negeri Sembilan. 27

PW 9 (Inspector Shafirie bin Saari) gave evidence that on 30.3.2012 at 8.50 pm he received instructions from the Investigation Offficer, ASP Wee Huat Nee, to seize certain items in relation to the case at a house no 157, Felda Sg Lui Barat, Bandar Seri jempol, Negeri Sembilan. PW 9 went with 8 of his team to the said address. There, he met with PW 13 and a male by the name of Radzemi bin Rahmat. PW 9 explained to PW 13 the reason he came was to seize the clothings of the Accused. As a result he seized: i) 1 black belt which has the logo NY which PW 9 marked as “T1” (exhibit P9A); ii) one white coloured singlet bearing the brand “Byford” which PW 9 marked as “S1”; iii) 2 long pants (dark blue) which PW 9 marked as “A1” and “A2”; iv) one long sleeve shirt (white) bearing the words “IBA Security” which PW 9 marked as “B1”.

PW 9 in his evidence said that as a result, he had issued a search list P28 to PW 13 whereby he recorded the items that were taken from one of the rooms of the said address. It was in evidence that the room was occupied by the Accused. Subsequently PW 9 brought the seized items to IPD Jelebu and handed over to ASP Wee Huat Nee at IPD Seremban on 4.4.2012. In the mean time the seized items were kept in his locked cabinet in his office. Only he had access to the cabinet.

PW 13 did not dispute that she signed P28, however claimed that the police did not explain to her the contents of P28 before she signed it. The defence had suggested to PW 9 that he did not explain to PW 13 the contents of P28 before she signed P28, to which was denied by PW 9. However the fact that PW 13 could write down her name on P28 indicates that she is not at all illiterate, as she claimed to be.

The evidence of PW 9 is confirmed by the evidence of PW 22 (D/Kpl Arasu) who came with PW 9 on 30.3.2012 to the address. 28 PW 22 confirmed that he saw PW 9 seized the belt P9A from the house at no 157, Felda Sg Lui Barat, Bandar Seri jempol, Negeri Sembilan. He had witnessed the signing of P28 by PW 13 as evidenced by the presence of his signature on P28. At pages 513- 514 of the Notes of proceedings PW 22 said that: “S: Ini adalah senarai bongkar yang Insp. menjadi saksi? A: Ya. S: sepanjang tanda tangan semua ini, Insp. berada dimana? A: Saya berada bersama dengan Insp. Shafirie semasa beliau menerangkan dan borang ini disediakan.” When PW 22 was referred to P9A, he said in evidence that he could identify the belt P9A because of the marking of “T” on the belt when he said: “saya ada bersama dia (PW 9). Dia kata kerana ini adalah tali pinggang kita tandakan T.” In cross examination PW 22 said he could identify the belt P9A which had the buckle “NY”. In any event, there is no reason for the police to record something which they did not take in the search list, in the light of the fact that apart from the belt there are other items seized, belonging to the Accused. I believe that PW 9 had explained to and read to PW 13 before she signed the search list in P28 (refer to page 183 of the Notes of Proceedings). Hence I find that PW 13 was not telling the truth when she said that the belt was not taken from her house.

There is no direct evidence to show that the Accused was/ was not wearing a belt when the incident happened. Although PW 13 was confident that P 9A did not belong to the Accused, I have to exercise caution in accepting her evidence as she is an interested witness and would do anything to help the Accused. Being an interested witness, her evidence needs corroboration, of which there is none. 29

It was in evidence that when PW 21 (Inspector Kentnorten) visited the body of the deceased on 27.3.2012 at around 10 am, PW 21 did an external observation on the body and found that: “Sewaktu membuat pemeriksaan pada mayat tersebut saya hanya membuat pemeriksaan luaran sahaja iaitu melihat pada kesan kecederaan yang nyata. Hasil pemeriksaan didapati bahagian kepala terdapat kesan bengkak di bahagian kanan kepala, kesan yang dipercayai kesan jerut pada bahagian leher dan terdapat kesan darah di mulut mayat. Lain-lain kecederaan tidak dapat dipastikan pada masa itu.”

The evidence of PW 4, Dr Sharifah Safoorah who did the post mortem said that: “…Terdapat kesan petechaie yang banyak pada muka, bahagian hidung dan juga kedua-dua bibir. Petechiae ini merujuk kepada kesan pecahnya salur darah di bawah kulit kerana pengaliran darah tersekat.” “…….Pemeriksaan pada bahagian leher menunjukkan ada kesan kondusi pada otot-otot leher di kedua-dua belah kiri dan kanan. Q: Kesan kondusi itu apa? J: Lebam pada bahagian otot. Kedua-dua salur darah carotid pada leher juga menunjukkan kesan koyak pada sebelah kiri.(Page 29 of the Notes of Proceedings) S: Carotid ini di bahagian mana? J: Leher. Salur darah pada leher dipanggil carotid. Anak tekak atau larynx juga menunjukkan kesan lebam. Ada juga kesan lebam pada salur darah parotid sebelah kanan. Tidak ada kesan-kesan keretakan pada mana-mana tulang di bahagian leher. Tidak ada kecederaan pada mana-mana bahagian organ di dada atau di abdomen…. Sebab kematian disahkan sebagai compression of the neck atau tekanan pada leher. 30 ….Kecederaan pada tekanan pada leher ini yang menimbulkan kecederaan seperti yang telah saya nyatakan adalh akibat satu objek yang tumpul. …..mungkin ia di sebabkan ada pattern pada leher, ada corak pada leher itu, mungkin pada pandangan saya, mungkin tali pinggang yang ada buckle. Q: tekanan yang macam mana? J: Tekanan dengan kudrat yang kuat. Substantial force. Seperti cekik tetapi dengan menggunakan satu objek.”

When the belt, P90A was referred to PW 4, her evidence is as follows: “ Q: kalau dilihat kepada ID 9A tersebut dan juga pattern yang doctor maksudkan, adakah pattern pada tali pinggang tersebut serupa dengan tali pinggang tersebut/ menunjukkan pattern yang ada pada leher simati. J: Similar. Seakan-akan.”

Therefore, my findings as far as the belt, P9A is concerned is that, it was seized by PW 9 on 30.3.2012 when he and his team went to the house at No 157, Felda Sg. Lui Barat, Bandar Seri Jempol, Jempol, Negeri Sembilan. PW 13 signed the search list and she was actually aware that the belt was taken by the police on that day.

Since the belt P9A was seized in the room where the trousers and the shirts belonging to the Accused were also found, in all likelihood the belt, P9A did belong to the Accused.

There is the evidence of PW 21 who said on 27.3.2012 at around 10 am, when the body of the deceased were first recovered, he did an external observation on the body of the deceased, he found “kesan yang dipercayai kesan jerut pada bahagian leher…” PW 21 said that the “kesan jerut” was not “jelas”. 31 PW 21 said that “maksud tidak berapa jelas itu, kesannya bukanlah, di bahagian leher itu cuma ada keadaan putus-putus. Kesan putus, Tidak lengkap. Tidak seluruh bulatan.” (refer to page 500 of the Notes of proceedings) This was corroborated by the evidence of PW 4 who said that her physical examination on the body of the deceased disclosed the pattern which was found at the neck of the deceased co-incidentally bore a similarity in pattern to the belt which is P9A. The gold items evidence (Evidence of PW 14):

This gold items are the gold chain and the locket which was worn by the deceased before her death. This was said in evidence by the husband of the deceased (PW 6).

PW 14 in his testimony said that at 9.50 a.m. in 2012, he got a call from his employer that there was somebody who wanted to sell gold items. His employer operates a goldsmith shop by the name of “SF Sinar Emas” at No 6, Tingkat Atas, Jalan Perhentian Bas, Bahau, Negeri Sembilan. At the material time he was having breakfast with his fiancée at a shop nearby. After receiving the call from his employer PW 14 went to the gold smith shop and met with the Accused to open the goldsmith shop. PW 14 asked the Accused whether it was him who had called his employer wanting to sell gold items. The Accused said yes. The Accused brought with him a gold locket and a chain to sell.

PW 14 said he bought the said gold locket and chain after verifying the quality of the gold items and paid the Accused RM 650.

PW 14 said he could identify the Accused. PW 14 said he asked the accused where he obtained the locket and the chain and PW 14 said the accused told him that it was his.

PW 14 said that the Accused came alone. After purchasing the gold chain and locket from the Accused, PW 14 wanted to give a 32 receit to the Accused but the Accused refused. PW 14 did not ask why the Accused did not want to accept a receit. After the transaction was completed, PW 14 closed his shop and proceeded to go and continue with his breakfast.

Subsequently, PW 14 melted the gold chain and locket which the Accused had sold, and handed the melted gold to his employer by the name of Sham.

PW 14 said a police team came in April 2012 with the Accused in a van. PW 14 and his employer, Sham were brought near the van where the Accused was asked by the police, which of the two (ie PW 14 and Sham) had bought the locket and the chain and the Accused pointed to PW 14.

Subsequently, the police seized the melted gold from Sham. PW 14 was subsequently detained for investigation for 2/3 days.

It was suggested by the defence that the Accused came to the shop to sell gold items with his wife in March 2012, to which PW 14 denied. PW 14 also disagreed to the suggestion by the defence that the Accused and his wife came few times to PW 14’s goldsmith shop to sell gold items. PW 14 maintained that in March 2012 was the only time that the Accused came to sell gold and that the accused came alone. PW 14 disagreed with the suggestion by the defence that the Accused came on that day with his wife to sell the gold items.

Although it was in evidence that the melted gold was handed to the police by Sham, the prosecution did not tender the melted gold as evidence. There was no explanation offered by the prosecution as to why this melted gold was not tendered as exhibits.

Although there was evidence of the husband of the deceased (PW 6) who said that the deceased was wearing a gold chain and a locket before she died, there was no evidence tendered by the prosecution as to how were the gold chain and the locket looks like. This is understandable as the said gold chain and the locket were said to have been melted by PW 14. 33

There is no evidence to show that the gold locket and the chain which was sold by the Accused to PW 14 is the very gold locket and chain belonging to the deceased.

However, through the evidence of PW 12, Inspector Azman bin Zaini he said as follows: “Pada 16.4.2012 jam lebih kurang 2.30 petang, saya bertugas di IPD Seremban sebagai pegawai risikan jenayah di IPD Seremban. Pada hari dan masa tersebut, saya telah menjalankan soal siasat brhubung kes Rantau Rpt 379/12 , IO ASP Wee Huat Nee di bilik soal siasat IPD Seremban bersama-sama dengan sof dan D/Kpl 124376 Radhi. Soal siasat tersebut dijalankan ke atas …Faizal Toed….berkenaan apa-apa barang milik simati Ruzila binti Jaafar yang jika ada didalam pengetahuan beliau. Hasil soal siasat tersebut, saya telah pergi ke sebuah premis No 6, Tingkat Atas, Jalan Perhentian Bas, Bahau, setelah dipandu arah oleh Faizal bin Toed pada jam lebih kurang 4.40 petnag hari yang ama. Apabila sampai di premis tersebut, Faizal bin Toed telah menunjukkan kepada saya satu lelaki melayuyang berada di premis tersebut. Hasil siasatan saya mendapati lelaki melayu tersebut merupakan orang yang membeli barang kemas rantai dan loket dar faizal bin Toed. Nama lelaki tersebut ialah Mohd Shah Azmi bin Bidin. Saya telah terangkan kehadiran saya di mana lelaki melayu tersebut faham dan menurut beliau telah memebeli satu loket dan rantai daripada Faizal bin Toed pada 27.3.2012 dan barang kemas itu telah dileburkan oleh beliau dalam bentuk ketulan emas. Saya telah rampas ketulan emas berkenaan daripada lelaki tersebut dan keluarkan senarai bongkar dan ditanda tangani oleh saya dan lelaki melayu tersebut. Selepas itu hasil soal siasat yang sama juga, Pada jam lebih kurang 6.30 petang pada hari yang sama, saya telah pergi ke perkarangan IPD jempol bersama Faizal bin Toed. Apabila sampai di perkarangan IPD jempol, Faizal bin Toed telah menunjukkan kepada saya sebuah kereta jenis Iswara warna kelabu No. Pendaftaran WJN 1578 dengn cara menuding jarai beliau ke kenderaan tersebut. Kami telah pergi menghampiri kenderaan 34 yang ditunjukkan oleh Faizal bin Toed tersebut dan beliau sendiri telah membuka pintu sebelah kiri bahagian penumpang hadapan dan telah membuka satu pemain cakera padat jenis Kenwood S/No 70902557 yang terpasang di dalam kenderaan tersebut dan menyerahkan kepada saya. Saya telah merampas dan kelaurkan senarai bngkar kepada Faizal bin Toed.” (page 223 of the Notes of proceedings)

The prosecution submitted that, if not for the guidance of the Accused the police could not have located the place of the gold smith shop where the Accused allegedly sold the gold locket and the chain belonging to the deceased and the Kenwood CD player

It was not submitted by the prosecution whether they are relying on section 27 the Evidence Act 1950, although the defence was objecting on the evidence of PW 12 stating that if the prosecution intended to pursue under section 27 of the Evidence Act 1950, a trial within a trial is necessary, which to me is misconceived. There is no duty on the prosecution to establish the voluntariness of the information under section 27 of the Evidence Act ( See the Court of Appeal case of Amathevelli v R. Ramasamy v PP [2008] 4 CLJ

“Section 27 is a concession to the prosecution ….since the discovery itself provides the acid truth of the statement that led to the discovery is thereby guaranteed. Admissibility of evidence under section 27 is in no way related to the making of the confession; rather, such evidence is admitted on clear grounds of relevancy as directly connecting the accused with the object recovered” (Chandrasekaran & Ors v PP [1970] 1 LNS 11, per raja Azlan Shah J, as he then was). “ Section 27 is an exception to the prohibition imposed by the preceding ss 24, 25 and 26…” (Wai Chan Leong v PP [1989] 2 CLJ 1168.” Section 27 is independent of section 24 which had been reaffirmed in the Federal Court case of Goi Ching Ang v PP [199] 1 CLJ 829. Hence a caution is not required for it to be admissible. Once an information is proved to be within the category of s 27 35 the trial court would admit it as evidence (PP v Sandra Margaret Birch [1977] 1 MLJ 129.

However from the submission of the prosecution, court is left to speculate as to what is the basis of this piece of evidence that the prosecution intended to rely on.

If it is section 27 of the same, there is no evidence of any information/statement given by the Accused that led to the discovery of the gold item. It is important for the court to know what was the information or statement supplied by the Accused that led to the discovery of the fact i.e the gold item and the Kenwood CD player, P23. More importantly, in our present case, it was in evidence that the leading to the alleged “discovery” was due to an interrogation by PW 12 and his team. It was not in evidence as to what was the question posed by the police and what was the answer by the Accused that led the police to the discovery. This is pertinent and the reason for such a requirement has been aptly explained by Augustine Paul J in PP v Hashim Hanafi [2003] 8 CLJ 555, at page 568 where he said that: “….in order for a discovery to come within the meaning of s. 27 it must be based exclusively on information supplied by the accused person. Information obtained pursuant to an interrogation does not affect its admissibility under section 27….. An interrogation will be a question and answer session. The critical issue for determination is whether the question from the interrogator can be read into the answer of the accused so as to form part of the information supplied. This is significant as it may have a substantial bearing on the admissibility and evidentiary value of the answer. The evidence shows that the information given by the accused to PW 4 at the scene was his act of pointing out in response to a question asked. The question which was paraphrased in evidence is as follows: Saya tanya kepada OKT adakah apa-apa barang salah dalam simpanan dan kawalannya. What has to be determined is whether the question must be read with the act of the accused. If it is to be read it will mean that the accused has admitted that the incriminating article was in his 36 custody and control. I will attempt to resolve the problem posed by way of an illustration. Supposing the question asked is : Where are the drugs? And the answer is: In the drawer. If the answer is read in isolation without reference to the question posed it would end up as being meaningless. The words “in the drawer” on their own do not mean anything. As Scroope J said in Sonaram & Anor v Emperor AIR 1931 Pat 145 at page 147: “….we cannot garble the statement made to the police so as to render it absolutely innocuous to the prisoner and remove it entirely from the nature of the confessional statement.” It is therefore implicit that the answer in the illustration that I have referred to must be read together with the question and understood as: “The drugs are in the drawer.” That, in my opinion would be the information supplied by the accused. Thus evidence of the question asked is imperative on the facts of a particular case in order to have a proper appreciation of the answer (see PP v Khoo Boo Hock & Anor [1990] 1 CLJ 971.) It follows that in certain circumstances the question asked has to be read with the answer given by the accused. Be that as it may, in view of the strictness with which s. 27 must be construed by virtue of it being an exception to the preceding three sections extreme care and caution must be exercised in reading the question posed with the answer.” (emphasis mine)

There is no requirement for a trial within a trial to admit statements that falls within section 27 of the Evidence Act 1950.

As far as our case is concerned, section 27 of the Evidence Act 1950 is not applicable, firstly, nowhere was it in evidence as to what was the question posed to the Accused that allegedly 37 resulted in the Accused leading the police to the discovery of the gold item and the Kenwood CD player. Secondly, there is no evidence of what was the information supplied by the Accused to the police as a result of the questioning. In other words there was no evidence of “information” supplied by the Accused that led to the discovery of the “fact” i.e the gold item and the CD player. Therefore the requirement of section 27 has not been fulfilled. Even if we are to take this piece of evidence at its highest, the fact that the Accused led police to the premise where the gold was sold, at most it would only amount to knowledge on the part of the accused, which need not necessarily proved the guilt of the Accused.

The next issue to be determined is whether from this piece of evidence only (the evidence that the accused led the police to the gold smith premise and the car WJN 1578, which ultimately led to the discovery of the melted gold and the Kenwood CD player), can it be said that the conduct of the Accused fall under section 8 (2) of the Evidence Act 1950. There was no submission from both sides in this respect with regard to these piece of evidence.

Case laws have established that, the inadmissibility of the information supplied by an Accused person, does not affect the admissibility of the evidence of the accused’s subsequent conduct under section 8 of the Evidence Act irrespective of section 27 of the Evidence Act 1950. The authority on point is the Federal Court case of Amarhevelli P. Ramasamy v PP [2009] 3 CLJ 109 where reference was made to case of Prakash Chand v State AIR SC 400 at page 404 where Chinappa Reddy J said that: “The evidence of the circumstances, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapon which might have been used in the commission of the offence was found hidden, would be admissible as conduct, under section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously will or antecedent to such conduct falls within the purview of section 27 of the 38 Evidence Act (vide Himachal Pradesh Administration v Om Prakash AIR [1972] SC 975)”

Applying the above principle to our case, the evidence of conduct of the Accused are as follows: i) Bringing PW 12 and his team to No 6, Tingkat Atas, Jalan Perhentian Bas, Bahau, Negeri Sembilan and to the car WJN 1578 at IPD Jempol. ii) Pointing to PW 14 as the person to whom he has sold the gold chain and locket which belonged to the deceased; iii) Taking out the Kenwood CD player from the car WJN 1578 which belonged to the deceased’s car NAP 5750. I am of the view that these subsequent conduct of the Accused, fall under section 8 of the Evidence Act 1950.

It was submitted by the defence that there is no evidence that the Kenwood CD player P23 belongs to the deceased. The defence stated that it belongs to the car WJN 1578. The defence submitted that the prosecution should have adduced evidence from Proton to verify that the Kenwood CD player comes with the car belonging to the deceased. I disagree with the submission of the defence in this respect. It is wholly unnecessary for the prosecution to call Proton for confirmation that the CD player belongs to the deceased’s car. The emphasis should be: i) how good is the identification by the husband of the deceased (PW 6) when he said in evidence that the CD player (P 23) is actually the one that was originally in the car NAP 7570; ii) Is there any other evidence to support the evidence of PW 6.

PW 6 had identified the cassette player P23 as the one that was in his car. He said he could recognized the Kenwood CD player 39 P23 as he had been using the car for one year before the incident of the murder. PW 6 said that the last time he went into the car, the CD player was still intact in the car NAP 7570. He was certain that P23 is the CD player which was in his car WJN 1578, although it was suggested by the defence that PW 6 was merely presuming that P23 was the Kenwood CD player that was in car

There was also the evidence of PW 7, who said that he has been in the car NAP 5750 few times and he said that there was a CD player in the car, but he was not sure of the brand of the same.

Taken by itself this piece of evidence by PW 6 with regards to the identification of the Kenwood CD player may seem to be weak, but it has to be look at together with the other evidence. This is apart from the fact that I have no reason to doubt the testimony of PW 6 and PW 7. The other evidences are: i) the photographs at exhibits P22 (5) shows the inside of car NAP 5750, that there is a slot which is empty which should have been the place where the CD player was located. This photograph was taken after the incident. Clearly, the CD player had been removed from where it should be. ii) the evidence of the conduct of the Accused leading the police to the car WJN 1578 and he took out the Kenwood CD player from the slot. This was after the interrogation on the Accused by the police team headed by PW 12, whereby he was interrogated as to the personal items belonging to the deceased which was within the knowledge of the Accused. That was when the accused took the police team to the car WJN 1578 and from inside the car, the Accused took out the Kenwood CD player. The Accused then handed over the CD Player to PW 12. iii) It is too much of a co incidence that the CD player which was found in the car WJN 1578 bore similar brand ( i.e. Kenwood) with the CD player that was earlier in car NAP 5750, which after the incident was found to be missing from its slot. 40

In any event, the conduct of the Accused in leading police to the gold items and the Kenwood CD player, is relevant to show knowledge on the part of the Accused of items belonging to the deceased. The conduct of the Accused in leading police to the gold smith shop and the location of the Kenwood CD player, falls within section 8 of the Evidence Act 1950.” [23] Mengenai isu (b) iaitu tentang alibi, kami tidak bersetuju dengan hujahan peguam perayu yang mengatakan isu itu tidak dipertimbangkan. Kami mendapati Hakim bicara dengan ketelitian yang ditunjukkan telah mempertimbangkan sepertimana yang berikut:

The Notice of alibi was investigated by the replacement Investigating Officer, PW 23, as ASP Wee Huat Nee had since passed away. The defence submitted that all the answers from PW 23 was that he did investigate but could not remember what was the investigation. The defence submitted that these answers and the “lackadaisical attitude” of PW 23 had prejudiced the defence.

From the evidence, PW 23 did not give a satisfactory explanation of his investigation on the alibi notice. Refer to page 547 of the Notes of Proceedings. In gist, he said that Supian, PW 16 had explained the shifts duties which he has with the Accused. PW 16 explained that he took over the shift from the accused 0n 26.3.2012. On 27.3.2012 PW 16 took over the shift from the Accused. After that, the Accused did not come work. It was after 27.3.2012 that PW 16 was working on 3 shifts consecutively as the Accused did not come to work anymore until his arrest. It was then that PW 16 reported the matter to his supervisor, Encik Murad.

Whatever its worth of the investigation of PW 23 on the alibi notice provided by the Accused, if one is to look at the notice of alibi in D86, the paragraph that is relevant would be para (d) only, as that is the relevant time when the murder of the deceased did take place. 41

The Accused gave the following names or persons to be investigated as his alibi defences i.e: “Iba Security Sdn Bhd (majikan saya) Supian bin Mohamad (Rakan sekerja Saya) En Toed bin Ahmad (Bapa Saya) Pn Zainun binti Bajuri (Ibu Saya) Erni bt Azrai (Isteri Saya)”

All, (except “majikan saya”), are not relevant to the notice of the alibi defences, as they were not at the place of work of the Accused between the time 11.50 pm 26.3.2012 until 8.00 am on 27.3.2012.

It is to be observed that no names were mentioned by the Accused as to who he meant by “majikan saya” that should be investigated. Notice of alibi should be clear and precise in its particulars (such as names and addresses of persons) to enable investigation to be carried out.

Supian bin Mohamad (PW 16) have given evidence and he could only verify at the time he handed the shift duty to the Accused i.e at 7.45 pm on 26.3.2012. What happened between 7.45 pm on 26.3.2012 until the next morning at 8 a.m. on 27.3.2012 is not within his knowledge, as he was not at the place of work. The name of Encik Nordin was mentioned as “penyelia” by PW 16 at the prosecution stage as the person to whom he had reported when the accused failed to report for work after 27.3.2012 (page 356 of the Notes of Proceedings). However this name was not mentioned by the accused in the Notice of Alibi.

The accused‘s father, mother and wife would not be able to verify his whereabouts between 11.50 pm on 26.3.2012 until 8 am on 27.3.2012 as he was on shift duty supposedly to be on guard at the Dewan Kumuniti.

Then there is the issue that the notice of alibi (D 86) was dated 12.12.2014. It was not clear as to when it was served on the prosecution although the notice was stated as being served by hand. 42 If the date of 12.12.2014 is to be taken as the date it was served on the prosecution, then it would seemed that notice of alibi was only prepared 2 years after the Accused was arrested by the police. The accused was arrested on 11.4.2012. The trial started on 19.9.2014 when PW 1 started to give his testimony. If it is true that the accused had his alibi defence, he would have raised it with the police the moment he was arrested i.e on 11.4.2012. Why did it take him 2 years after his arrest, to raise the defence of alibi and 4 months after the trial had already commenced in the High Court. The conduct of the Accused in failing to raise his alibi defences at the earliest opportunity available, raises doubt as to the truth of the alibi.

Hence, although the attitude of the replacement IO, PW 23 left a lot to be desired as to the quality of his investigation on the alibi notice, at the end of it all: i) firstly, it is for the defence to supply the particulars, such as the names and addresses of the persons named in the alibi notice for purposes of investigation (except for Supian, Accused’s father, mother and wife). In the present case, as far as the “majikan” is concerned there is lack of particulars. The Accused did not name who is the Majikan that he was referring to in the notice of alibi. Neither was any name suggested to the replacement IO when he was cross examined. ii) Secondly, this alibi defence was only raised 4 months after trial had commenced.” Selanjutnya, di akhir kes pembelaan, Hakim bicara merumuskan: “241. As to the alibi defence raised, it was doomed from the start. The accused’s family could not verify his whereabouts from 12 midnight until 6 a.m on 27.3.2012 as they were never at the place of work at the Dewan Komuniti. Even if the attendance book of Iba Security Sdn Bhd was 43 produced, it still would not be able confirm the presence of the Accused at all times between 12 midnight until 6 a.m. on 27.3.2012. Hence the alibi defence fails.” Secara tuntasnya, kami tidak mengesan adanya kelemahan atau pun kekhilafan Hakim bicara dalam mempertimbangkan isu ini. Oleh itu, tiada alasan bagi kami untuk mengganggu dapatan ini. [24] Mengenai isu (c) iaitu Hakim bicara telah terkhilaf apabila gagal memperhalusi dan mempertimbangkan pembelaan perayu dengan sewajarnya, kami juga mendapati hujahan ini amat tersasar sekali. Hakim bicara telah mempertimbangkan keterangan dan saksi-saksi yang dikemukakan atau dipanggil semula oleh perayu semasa pembelaannya. Setelah menilai dengan penuh kecermatan, Hakim bicara mendapati sebahagian pembelaan perayu merupakan pemikiran semula memandangkan perkara tersebut tidak ditimbulkan semasa kes pendakwaan. Selainnya dan inter alia, terdapat keterangan yang tidak dipercayai yang melibatkan saksi-saksi yang berkepentingan seperti DW2 dan DW3; dan perilaku perayu. Ini menjurus kepada penafian semata. Dalam analisis dan pencerahan yang begitu cermat oleh Hakim bicara, seperti mana dizahirkan dalam alasan penghakimannya di muka surat 77- 92, Rekod Rayuan Jilid:1, kami berpendapat cabaran bahawa Hakim bicara telah bersikap prejudis dan tidak membuat penilaian secara kritikal terhadap keseluruhan keterangan pembelaan perayu dan saksi-saksi amat tidak tepat. Memandangkan cabaran peguam bela cenderung kepada isu penilaian kesaksian dan fakta, undang-undang kini mantap bahawa Hakim bicara berhak membuat dapatan tersebut dan dengan betul telah mempertimbangkan pembelaan perayu dengan keterangan pendakwaan di 44 peringkat prima facie. Tanpa mengulangi huraian itu di sini, yang dapatannya kami setujui, Hakim bicara bukan sahaja tidak mempercayai pembelaan yang dikemukakan malahan telah, secara keseluruhannya, mendapati pembelaan telah gagal menimbulkan keraguan yang munasabah terhadap kes pendakwaan. Pada hemat kami Hakim bicara tidak terkhilaf di situ. Kesimpulan [25] Muktamadnya, berdasarkan huraian dan pertimbangan di atas, kami sebulat suara mendapati Hakim bicara telah bertindak dengan betul dalam membuat dapatan dan keputusan yang dicabar. Beliau telah mengarahkan mindanya kepada persoalan yang betul dan mengaplikasikan prinsip perundangan yang terpakai ke atas fakta-fakta primer untuk membuat dapatan fakta muktamad yang betul. Tiada kecacatan dan kelemahan yang mewajarkan campur tangan kami. Dalam keadaan itu, kami mendapati sabitan adalah selamat. Dengan itu rayuan perayu ditolak dan perintah dan hukuman Hakim bicara disahkan dan dikekalkan. t.t (ABDUL KARIM BIN ABDUL JALIL) Hakim Mahkamah Rayuan Malaysia Tarikh : 23 Oktober 2018 45 Bagi pihak Perayu: Nik Mohamed Ikhwan Nik Mahamud Tetuan Nik Ikhwan & Co. Bagi pihak Responden: Wong Poi Yoke Timbalan Pendakwa Raya Jabatan Peguam Negara