Noor Azmi Bin Ibrahim v Pendakwa Raya (AB-42JSKS(A)-3-02/2022)

4.6.2019 around 9.00pm C1 held breast (SP4) C2 held back to thigh (SP4) C1 8 years and 2 strokes C2 8 years and 2 strokes (from date of arrest 6.10.2019) Concurrently 2-02/2022 61JSK-4- 10/2019 C1 - s14(a) AC - s14(a) V2 (10 years and 5 months) (12 years and 2 months)

4.5.2019 around 6.00 pm C1 held chest (SP5) C2 held chest (SP4) C1 8 years and 2 strokes AC 8 years and 2 strokes Consecutively after sentences in Case No. 61JSK- 3-10/2019) 3-02/2022 61JSK-5- 10/2019 s14(b) V3 (5 years and 9 months)

7.5.2019 around 6.00 pm Forced V3 to hold his genitals (SP4) 10 years and 2 strokes After all other sentences have been served Key: C denotes Charge C1 denotes Charge 1 C2 denotes Charge 2 AC denotes Additional Charge SOAC Act 2017 Sexual Offences against Children Act 2017 * All charges were read together with s.16 of the Act The orders of witnesses were different in each trial [4] At the end of the appeals in the High Court on 30.3.2023, the Court affirmed the convictions and maintained the sentences given by the learned Sessions Court Judge (SCJ). Although the SCJ produced 3 different Grounds of Judgment for the trials that were held separately, this 5 Court has prepared only 1 Grounds of Judgment for all 3 appeals for ease of reference since the appeals were heard together and comprised the 3 Petitions of Appeal showed that the same issues were raised against the judgment of the SCJ where it was alleged in 19 paragraphs (Case Nos. 10 and 3) and 20 paragraphs (Case No. 2), respectively, that the SCJ had misdirected herself on the facts and on the law. The prosecution cases 15 [5] In Case No. 61JSK-3-10/2019, V1 was SP4 and her mother was SP3. The incident took place on the night before Hari Raya Aidil Fitri 2019 at the family house. The Investigating Officer, Insp Milda Aren anak Maling was the last witness, SP6. These were the pertinent characters in the first trial. By the time she gave evidence in Court, V1 was already 14 years old. The SCJ asked her some questions to determine that V1 understood the nature of the oath. Then the SCJ proceeded to administer the oath to V1 when she was satisfied the child understood the nature of an oath 5 (page 32 of the RRJ2). [6] According to V1, that night she and her mother SP3 were clearing the used plates after breaking fast in the living area in front of the television. The only other person who was there at the time was the 10 Appellant. The rest of the family members were outside, playing fire crackers. Suddenly, the Appellant came close to the left side of SP4 and held her left breast in one hand. Then, he proceeded to grope her left inner thigh. V1 was not comfortable with this conduct and told him so. She felt embarrassed by his conduct (pages 34-35 of RRJ2). At the same time, 15 SP3 who witnessed this conduct reprimanded him as well (she saw him . SP3 said he was laughing when he was doing that to V1. apa abang, buat anak macam tu. Kata nak berubah tapi tak berubah jugak However, the Appellant merely shrugged it off bukan ada apa, sikit je A fight then ensued between SP3 20 and the Appellant and he told SP3 to get out from the house with their children. SP3 and all the children (except one of their sons) left the house for her in Kampung Selabak, Teluk Intan while the Appellant and one of his sons went for prayers. SP3 told the court she had jotted down the incident in a 25 yellow coloured notebook marked as exhibit P8 in the trial. SP3 thought the matter has been put to rest then. [7] However, in the month of October 2019, the Appellant paid a visit to SP3 and the children in Teluk Intan. He threatened SP3 and asked for money, since she refused to go back to with him. This caused SP3 fear and distress. Only then a police report Sg Siput/4184/19 was lodged by SP3 on 15.10.2019 which was marked as exhibit P7. According to the 5 testimony of the Investigation Officer SP6, Insp Milda Aren anak Maling, when she was given the yellow book she believed it was written by SP3 and she did not need to send it to be examined by a handwriting expert. She said she did not know why the entries made by SP3 were short and brief and did not specifically mentioned the incidences. However, she 10 believed SP3 wrote in a hurry as she was afraid and that SP3 would write about things that happened to her in the book. Based on her investigations, the incidences complained by V1 were committed by the Appellant and SP6 denied that the police report was concocted. When sedih dan sugul 15 [8] Meanwhile, in her cross-examination, V1 answered that when she was younger her father used to touch her but in regard to the incident, she indicated that it was not normal because he touched and groped her breasts. She knew it was wrong when he first touched her like that and 20 she told her mother. When asked whether she knew it was wrong, she Saya tahu. Saya cuma bagitahu mak untuk kepastian the RRJ2). V1 agreed she was glad her father was in prison. She did not discuss the incident with her mother while they were in the car to attend court and that 25 In re-examination, V1 explained that when she said she would do anything for her mother, she meant because her mother told her to study well and go to university and get a good job. [9] In the second trial, in the Case No. 61-JSK-4-10/2019, the victims were V2 and her sister V1 (the victim in the additional charge). V2 gave evidence as SP5 whereas V1 gave evidence as SP4. Their mother gave evidence as SP3. The Investigating Officer, was the last witness, SP7. The incidences occurred on the night before the first day of fasting month 5 Ramadhan 2019 at the family house. By the time she gave evidence in Court, V2 was already 13 years old. The SCJ asked her some questions to determine that V2 understood the nature of the oath. Then the SCJ proceeded to administer the oath to V2 when she was satisfied the child understood the nature of an oath (page 45 of the RRJ2). 10 [10] The victims, V1 and V2, were on the floor of their living room watching television with their three other siblings. The Appellant was lying down on the sofa right behind them. Their mother, SP3 was further behind him, also watching television. Suddenly, the Appellant grabbed and held 15 V1 shouted at him abah, jangan pegang macam ni sakit kenapa abah pegang dada ala sikit aje, tak ada apa, pegang saja (page 19, RRJ2). SP3 continued: 20 dia macam seronok sebab dia gelak lepas tu. Selepas itu, suami saya marah 25 [11] According to SP3, s chest. V2 was sitting next to V1. jangan la pegang macam tu ab SP3 who witnessed reprimanded the Appellant for doing the same thing Kemudian suami marah saya dan anak-anak. Anak-anak jadi tak selesa sebab ayah dia marah-marah. Suami saya marah-That night, the accused hit his wife for admonishing him about the incident. SP3 told the Court that she remembered the incidents and she noted them in the yellow 5 book when he would not be looking. She used to note the incidents in a calendar but when he knew about it, the Appellant tore up the calendar. So, SP3 started noting the incidents down in the yellow book. She said in her 18 years of marriage she was not happy and that her husband did not love the children. He was also not close to his other family members. 10 She had sought their advice in the past. They would reprimand him and he would behave for a while. But he would repeat the same thing after that. [12] Later on, after the incidents on the night before Raya the next 15 month, SP3 lodged a police report, Sg Siput/4184/19(the same as above) the small yellow book was tendered by the prosecution. For example, in the second trial, the entry next to the date 4.5. was marked as P6. She explained that the delay in making the report was 20 because after they left for Teluk Intan she thought he would not disturb them anymore. The report was made for their safety and that although she wanted to make a longer report, the policeman at the station told her to just write a short one (page 22, RRJ2). She denied that she concocted her story and the police report because she witnessed the incidents and 25 she had witnesses. [13] The testimonies of V1 and the court that she did not directly witness the Appellant groping V1. If they were lying, they could have just admitted both saw what the Appellant did to V1. Based on investigations, both victims implicated the Appellant in the incidents. The SCJ found that there was corroboration in their evidence. 5 [14] In the third trial, in the Case No. 61-JSK-5-10/2019, the victim was V3, the youngest daughter of the Appellant. V3 gave evidence as SP4

contradictions among the testimonies of the prosecution 15 witnesses;

(ii) uncorroborated evidence;

(iii) delay in making and lodging of the police report;

(iv) malicious motive of the prosecution witnesses; and

defence was not properly considered by the SCJ. 20 [21] amang seksual fizikal been proved. amang seksual fizikal has been analysed in the case of Mohd 25 Khairul Azlan Bin Mohd Napi v Pendakwa Raya [2021] MLJU 2052 (paragraph 7 ons). The Appellant argued that the offences were allegedly committed in view of the public (ie the family members) and that did not make sense. The facts did not show that there were any apprehension or fear among the children and therefore, it was argued that the ingredients of the offence had not been fulfilled. Mere 5 touching did not constitute a sexual offence. Moreover, counsel for the Appellant argued that the positions of the witnesses did not support their story of how the offences were allegedly committed by the Appellant. [22] The SCJ in her Grounds of Judgment in all 3 cases had dealt with 10 the ingredients of the charges. She listed the ingredients and went on to consider the evidence adduced by the prosecution in support (refer to RRJ1 for each appeal at pages 14, 19 and 14 respectively). Under the law, section 14 of the Act provides:

Physical sexual assault on a child 15 Any person who, for sexual purposes

touches any part of the body of a child;

makes a child touch any part of the body of such person or of any other person; 20

does any other acts that involve physical contact with a child without sexual intercourse, commits an offence and shall, on conviction, be punished with imprisonment for a term not exceeding twenty years and shall also be liable to whipping. 25 Explanation 1 The act of touching may involve the act of touching with any part of the body or with an object and may be done through anything including anything worn by the person touching or by the child touched. Explanation 2 In determining what constitutes sexual purposes, the court may take into consideration, among others, the part of the body 30 that is touched, the nature and extent of the act of touching or the physical contact and all other circumstances surrounding the conduct. [23] The charges are read with section 16 of the Act due to the Appellant being the father of the victims. The provision reads as follows:

Person in a relationship of trust

If a person who commits any offence under this Act or any offence specified in the Schedule against a child, is in a relationship of trust with the 5 child, such person shall, in addition to the punishment to which he is liable for such offence, be punished with imprisonment for a term not exceeding five years and shall also be punished with whipping of not less than two strokes.

In this section, a person is said to be in a relationship of trust with a child if the child is under his care, supervision or authority, including but not limited 10 to

a parent, guardian or person who is related through full-blood or half-blood, or through marriage or adoption, including de facto adoption; [24] In the 3 Grounds of Judgment, the SCJ explained the ingredients 15 to be proved under s.14(a), namely: i. the Appellant as the father of the victim; ii. for a sexual purpose; iii. groped the breast (or other body part) of the victim; and iv. who was a child at the time of the offence. 20 [25] In respect of the charge in the third trial which was under s.14(b), the third ingredient (iii) was that making a child touch any body part of the Appellant, namely his penis. Upon perusal of the Grounds of Judgment, the SCJ had considered all the evidence before her upon a 25 maximum evaluation of the prosecution case. Satisfied that the ingredients of each offence had been proved, the SCJ proceeded to call for his defence in all 3 cases.

Contradictions among the testimonies of the prosecution 30 witnesses [26] The Appellant relied on the earlier case of Mohd Khairul Azlan. However, that case can be distinguished on the facts. Moreover, there was no written Ground of Judgment because the trial judge had passed away. There were doubts in the prosecution case which the High Court Judge on appeal found that the prosecution had not discharged the 5 burden of proof. broad grounds I had stated that the Court found that this ground raised by the Appellant was without merit. This was because the evidence of the contradict each other on material particulars. In regard to the police report 10 lodged by SP3, she had explained that she wanted to write a longer report but was told by the police officer at the balai to write a brief report. I will, in this Grounds of Judgment, elaborate on my findings and the reasons. [27] Looking at the report P7, it was obvious that SP3 had a lot of things 15 to tell but she had to keep the report short in one paragraph. She started with her complaint that her husband had on many occasions sodomised her until end of May 2019. Then it mentioned the abusive behaviour of the husband and threats to SP3 and their children. After that, she stated the Appellant had in the past molested their daughters when she was not at 20 home. Then on 4.6.2019 she was told to leave the house as she had failed to give him money. Lastly, she mentioned that the report was made to seek police protection and monitoring for SP3 and her children from harassment by the Appellant. Hence, the court found that this evidence delayed in making the report 25 as she thought after leaving their house, she and the children would no longer be disturbed by the Appellant. [28] As a First Information Report, the contents were sufficient to enable the police to commence investigations against the Appellant. Although P7 did not mention the incidents as per the charges framed against him, the report was the basis for the investigations comprising the children as victims of sexual crimes committed by the Appellant. SP3 had also given 5 evidence in Court that she reprimanded the Appellant when he touched then her back to the inner thigh. She said apa abang, buat anak macam tu. Kata nak berubah tapi tak berubah This statement alluded to the fact that he had done this before to the children and was doing it again after saying that he wanted to change. 10 There was no confusion at all in reading the P7 report and comparing it alleged inconsistencies. [29] Moreover, the SCJ had the benefit of observing the demeanour of 15 the witnesses and she found they were credible witnesses of the truth despite their young age. She had also tested their ability to understand the duty to speak the truth and found that they understood the nature of an oath, even the youngest victim. In regard to SP3, the SCJ found that she was also a credible witness. She may be a simple person but SP3 20 loved her children very much and was aware of her duties as a mother to protect her children and she did it to the best of her ability. SP3 was a strong and very determined woman who walked out of her marriage in order to save the children, especially the 3 young girls. 25 [30] The High Court as an appellate court does not have the advantage of observing the demeanour of witnesses and it is trite that an appellate court would be slow to disturb the findings of the subordinate court on the issue of credibility of witnesses unless the findings made was perverse. In the case of Dato Mokhtar Hashim & Anor v PP [1983] 2 MLJ 232, the Court held: the credibility of a witness is primarily a matter for the trial judge. The 5 functions of an Appellate Court, when dealing with a question of fact in which questions of credibility are involved are limited in their character and scope and in an appeal from a decision of a trial judge based on his opinion of the trustworthiness of witnesses whom he has seen, an Appellate Court must in order to reverse not merely entertain doubts whether the decision below is 10 right but be convinced that it is wrong. In this case the learned trial judge accepted the evidence of Atun, the prosecution witness, whom he found to be a consistent witness unshaken by very severe cross-examination and the Appeal Court could find no reason to interfere with his 15 [31] The case of Mohd Khairul Azlan (supra) referred to the case of Pie Bin Chin v PP [1985] 1 MLJ 234 where it was held: Forgetfulness and failure to recall exactly certain events, which did not seem to be important to the witness, do not necessarily shake 20 his credibility or render other parts of his story unworthy of belief. Various persons are endowed with varying powers of cognition, attentiveness and perception, so that it is not uncommon for two witnesses to a common event to describe it in slightly differing versions. Thus the slight dissimilarity between the evidence of the 25 complainant and his wife is explicable. It was further contended that the inconsistencies in the evidence of the complainant itself should make his story unreliable. It is true that he gave capricious accounts of certain facts but then those matters relate mostly to subsidiary issues. He was understandably vague on details on sequence of events relating to the 30 payments but of the payments themselves and the amount paid on each occasion t and heard the witness is in a better position than I am to evaluate the credibility of the witnesses, but also because I accept that no witness of 35 truth can account for the details of events which had transpired some 17 [Emphasis added]

(ii) Uncorroborated evidence [32] This was another ground raised in the Petition of Appeal. The SCJ found in all 3 cases that there were ample evidence to corroborate the evidence of the victims. This Court agreed with the findings of the SCJ when she found that there were corroborative evidence in the prosecution 5 cases in all 3 trials. I found that the SCJ had warned herself of the dangers of accepting the unsworn testimony of a child witness and had conducted the steps to determine whether the 3 children understood the duty the speak the truth and the nature of an oath. Being so satisfied, the SCJ administered the oath upon the children and they all testified 10 [33] It is trite law under section 133A of the Evidence Act 1950 that when a child of tender years who is called as a witness does not in the opinion of the court understand the nature of an oath, he may give 15 unsworn evidence if the court is satisfied that he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth. But the accused shall not be convicted unless that evidence is corroborated by some material particular in support implicating the accused before he can be convicted. In the case of a 20 sworn child witness, the old rule of prudence applies, viz, the need to give an exhaustive warning on the dangers of convicting on such uncorroborated evidence (Augustine Paul, Evidence: Practice and Procedure Fourth Edition, Lexis Nexis, at page 1148) 25 [34] Nevertheless, it must be borne in mind that the 2017 Act also provides for the approach that courts should take in considering evidence of child witnesses. Particularly, sections 17 and 18 are very powerful provisions that the courts may invoke where appropriate. The provisions have been reproduced for ease of reference as follows:

Notwithstanding anything contrary in any other written law, in any 5 proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, a child is presumed to be competent to give evidence unless the court thinks otherwise. 10

Evidence of child witness Notwithstanding anything contrary in any other written law, in any proceedings against any person relating to any offence under this Act, or any offence specified in the Schedule where the victim is a child, the court may convict such person of such offence on the basis of the uncorroborated 15 evidence of [35] In the present case, the SCJ also invoked the evidentiary rules in the 2017 Act as stated above. The SCJ mentioned in paragraph 20 that the evidence of victims in a sexual offence cases are very important for 20 the courts to come to a decision and it is often difficult to obtain eye-witnesses as these offences are usually committed away from the watching evidentiary rules to enable a sexual offender against children to be dealt with accordingly and brought to justice. In the present case, the SCJ had 25 found that the 3 children were competent witnesses (s.17 of the Act). The learned SCJ had also found the evidence of the prosecution witnesses corroborated each other and did not actually need to apply s.18 of the Act in that regard. She convicted the Appellant on all charges because his defence did not raise any reasonable doubt against the prosecution 30 cases, and she had explained why she though his defence were just bare denials and afterthoughts.

(iii) Delay in making and lodging of the police report [36] The Court has considered and discussed this ground of appeal in the preceding paragraphs above and found that SP3 had sufficiently explained the delay in lodging the police report. The fact that SP7 said it was because SP3 did not have transportation was not a material 5 contradiction of explanation. Hence, there was also no merit on this ground of appeal.

(iv) Malicious motive of the prosecution witnesses [37] One of the arguments earlier was that these incidents 10 could not have happened. This was because if it was true, the Appellant would not have done it in front of the other children or his wife. To my mind, that is too simplistic of an approach. Upon consideration of all the oral evidence in this case (SP3, V1, V2 and V3 and SP7 (Investigation Officer)) and taking into account the demeanour of witnesses on both 15 sides, the SCJ found that the Appellant did commit the offences charged against him. I agree with the findings of the learned SCJ. The testimonies of his wife and children (which were not destroyed in their cross-examination) proved that he was very brazen in his actions. The Appellant probably thought he could get away with his boorish and vulgar behaviour 20 against the children and his wife. He also admitted to fighting and hitting his wife often. He would just laugh when admonished by SP3 for groping He did all these in front of his immediate family members and in the privacy of his home, not in public. Therefore, the Court also did not find any merits on this issue 25 raised by the Appellant. [38] This brings me to the issue of motive. It was put to the prosecution witnesses that they had a grudge against the Appellant and would do anything to see him behind bars. That they would be happy that he remained in prison because he would not be able to disturb them h they answered that they were happy the Appellant was no longer with them, the Court did not find any evidence of 5 malice or that they had a motive to victimise him. My reasons are as follows. [39] The SCJ found that when the victims were testifying, they were able to describe clearly what their father did to them and they were affected by 10 his actions when he sexually molested them. The victims could also recall the incidents as these happened in the month of Ramadhan and before Hari Raya Aidil Fitri. What should be a period of happy occasion and festivities was instead marred by the sexual crimes committed by the Appellant against his children. He even tried to hurt his youngest daughter 15 when he wanted to grab the knife from his wife to prevent V3 from relating to her about what he did. Moreover, it was not challenged that SP3 stated she always forgave him for his bad treatment of her but she could no longer stand it when he started sexually abusing their children. Therefore, the Appellant also failed on this ground.

Defence was not properly considered by the SCJ [40] The Court found there was no merit on this ground too. Referring to the Ground of Judgment of the SCJ, it could be seen that she had clearly addressed the defence of the Appellant in all 3 trials (see paragraphs 48- 25 60 of the first and second trials and paragraphs 38-50 of the third trial). Nevertheless, the SCJ found that they were only bare denials and after thought. In coming to this conclusion, the SCJ also had correctly applied the relevant case laws on considering defence adduced by an accused. [41] It was contended by the Appellant that mere touching without any sexual connotation was not wrong as However, looking at the testimonies of V1, V2 and V3, it was obvious that the children did not like the Appellant holding and touching their breasts or other body parts because even as children they appreciated that the 5 physical touching and holding of those parts of the body were simply wrong. Referring again to the case of Mohd. Khairul Azlan, it was stated: [54] Mahkamah juga perlu melihat keadaan semasa kejadian sentuhan itu berlaku sama ada ia boleh dijuruskan kepada ianya bermaksud 10 seksual. Sebagai contoh, sekiranya kejadian tersebut berlaku di kawasan yang sunyi dan tanpa terdedah kepada pandangan umum maka ia mungkin boleh dilihat sebagai bermaksud seksual. Begitu juga sekiranya tindakan Perayu yang mengunci kenderaan sehingga menyebabkan mangsa tiada peluang untuk melarikan diri ketika berada hanya bersama- 15 sama dengan Perayu. [55] Apa yang jelas ialah mahkamah perlu melihat keseluruhan keterangan yang dikemukakan. Bagi melihat sama ada ianya mencukupi untuk menunjukkan bahawa sentuhan dan bahagian 20 yang disentuh itu sudah menjurus kepada bermaksud seksual. Ini adalah penting bagi memastikan bahawa sebarang sentuhan yang dibuat terhadap kanak-kanak bukan semestinya boleh dikatakan sebagai satu kesalahan di bawah s.14(a) sebaliknya penelitian lanjut perlu dibuat kepada keterangan bagi mendapatkan keterangan yang 25 jelas bahawa sentuhan tersebut bermaksud seksual. Ia bertujuan bagi menghalang sebarang penyalahgunaan s. 14(a) bagi tindakan sentuhan kanak-kanak yang tiada keterangan ianya bermaksud seksual. Pada masa yang sama Mahkamah juga perlu memberi perhatian bahawa kejadian sentuhan tersebut adalah melibatkan dua 30 orang iaitu seorang kanak-kanak dan tertuduh. Oleh yang demikian keterangan kanak-kanak tersebut perlu diteliti dengan sewajarnya dan tidak diketepikan begitu sahaja. Oleh yang demikian s. 18 dalam keadaan yang sedemikian boleh digunakan dengan tidak mengenepikan kredibiliti saksi tersebut atau percanggahan- 35 percanggahan yang serius yang berlaku di antara saksi kanak-kanak tersebut dengan saksi yang lain. [Penekanan ditambah] [42] The overall facts in the 3 trials showed abah, jangan pegang macam tu for him to touch a part of their body that was very private. They were all growing up at 12, 11 and 6 years respectively at the material time. 5 Children that age are becoming aware of their body and what would be inappropriate touching by others. V1 and V2 told the Court they asked their mother just to confirm that it was inappropriate touching although they already knew it was wrong of their father to touch and hold them like that. Despite their young age, the children appreciated the sanctity of their 10 body; hence, why should the court ever doubt their credibility in that regard. The SCJ did not make any error in her findings when she concluded that they were credible witnesses. Moreover, their evidence were corroborated by SP3. There were no material contradictions and the trial court was right to accept their evidence. Following from the above, 15 with no explanation coming from the Appellant on these charges when his defence was called, the SCJ could only conclude that his defence was only a bare denial and afterthought. [43] Credibility of witnesses is one thing and adducing credible evidence 20 to prove each ingredient of the offence charged is another matter. At the prima facie stage, the learned SCJ had on a maximum evaluation of the prosecution case found that the ingredients of the 5 charges had been proved by the prosecution which had adduced credible evidence against the Appellant (for example, please refer to RRJ1 in the Grounds of 25 Judgment at paragraphs 5 47 of the first trial). Again, referring to Mohd Case, which cited the case of Abdullah Atan v PP & Other Appeals [2020] 9 CLJ 151 there the Federal Court held that: [43] Section 180(4) of the CPC must be read in light of its context and legislative purpose. By so doing, the phrase evidence proving each ingredient of the in s. 180(4) means that the prosecution may prove each ingredient of the offence either:

by adducing credible direct evidence of that ingredient;

(ii) by drawing inferences of fact, ie, adducing credible circumstantial evidence, from which the ingredient can be inferred; or

(iii) by invoking presumptions of law, ie, adducing credible evidence of the relevant basic facts, to invoke a statutory presumption that the ingredient exists. 10 [44] The burden of proof lies throughout on the prosecution to prove the case beyond reasonable doubt. In the case of Rosli Yusof v PP [2021] 7 CLJ 681 that was also referred to by the learned Judge in Mohd Khairul Case, the Federal Court held: 15 [45] It is trite law that it is not the duty of the appellant to prove his innocence or to call a particular witness to support his defence (see Tan Foo Su v. PP [1967] 1 LNS 179; [1967] 2 MLJ 19; and Sandra Margaret Birch v. PP [1977] 1 LNS 114; [1978] 1 MLJ 72). The law places upon the prosecution the burden to prove guilt of the appellant beyond reasonable doubt and not on 20 the appellant to prove his innocence. Well-entrenched in jurisprudence is the rule that the conviction of the appellant must rest not on the weakness of the defence but on the strength of the prosecution. This principle is the corner stone of our criminal law [Emphasis added] 25 [45] While the SCJ in her Grounds of Judgment had stated that the Appellant did not call any witness to support his defence that his wife and children concocted their story, I did not find that the SCJ had misdirected herself because as the trier of fact, she had the benefit of having all the 30 evidence presented before her in order to conclude on the innocence or guilt of the Appellant. On a maximum evaluation of the prosecution case, she found that each ingredient of the offences under s.14(a) and (b) had been proved before calling his defence. The SCJ were convinced that the prosecution witnesses were telling the truth and found them to be credible witnesses. In her Grounds of Judgment, as I had mentioned above, the 5 SCJ had carefully considered the evidence put forth by the Appellant and tested it against the evidence of the prosecution. She did not just pay lip service by saying that she was satisfied the prosecution had proved its case beyond reasonable doubt, as was the situation in Mohd Khairul Azlan (where there was no written Grounds of Judgment). 10 Other Issues [46] I would just touch on a few other issues raised by the Appellant such as the yellow book which contained notes made by SP3(P6) and the sketch plan of the house. 15 date 4.5.2019 in the second trial was submitted to have been added as an afterthought. It was submitted that these documents were not helpful and did not prove the incidents happened. Additionally, in regard to the sketch plan, counsel for the Appellant questioned why it was adduced in one of the cases when the investigation Officer stated it was for another 20 case instead. Upon perusal of the record of appeal (RRJ3 at page 10, second appeal), the Court found that the said entry was indeed made by SP3. It could have been that it was written hurriedly as SP3 told the trial court she was afraid of her husband and she could not elaborate on it. 25 [47] The sketch plan was to assist the Court to show the location of the living room (where the incidents were alleged to have been committed), the kitchen and bedrooms. It is not an important document. The strength of the prosecution case was in the credibility of the witnesses whose testimonies withstood extensive cross-exa counsel. The important thing was that the Investigation Officer testified that she had gone to visit the house and stood in the kitchen where SP3 had been preparing food at the table. The Investigation Officer confirmed 5 that she could see the living room and sofa from where SP3 had stood then. In the last charge, according to SP3, the Appellant lied down on the sofa with his legs towards the kitchen. SP3 could see his erection when the Appellant menyelak kain sarong which he wore at that time. The Appellant merely denied this evidence but admitted that he usually wore 10 his kain sarong when resting or lounging in the house. Therefore, the Appellant could not challenge this evidence and it withstood the cross-examination by his counsel. [48] The also submitted that he had been consistent 15 in his defence and it was not an afterthought because he denied everything in his s.112 CPC statement which was tendered as D13 at the trial. The Court noted that the statement was taken on 18.10.2019