Seterusnya saya berjalan ke bilik Persie iaitu bilik nombor 3 dan saya terus tendang pintunya sampai terbuka dan saya masuk dan tetak si Persie di lehernya satu kali di depan isterinya Normah yang juga ada disitu. Selepas menetak saya pun berundur sebab saya cuma mau cederakan dia saja supaya dia jera tetapi si Persie tiba-tiba bangun dan meluru ke arah saya mahu memukul. Bila melihat dia meluru saya pun rasa takut yang amat sangat dan kemudian saya dapati diri saya macam hilang kawalan ke atas badan saya sendiri dan perasaan saya macam melihat dalam mimpi saja. Saya tidak dapat kawal diri saya walaupun saya sedar saya sedang melibas parang beberapa kali ke kepalanya. Saya juga hilang kesedaran sehingga saya tidak boleh ingat samada Persie ada menangkis dengan tangannya atau jika kepalanya terkena tetakan parang saya sebab tangan saya hanya melibas sebarangan saja tanpa saya niatkan untuk buat apa-apa. Saya nampak tangannya 4 ada cedera tapi sekejap saja sebab selepas itu isterinya si Normah pun meluru ke arah saya dan saya tidak dapat kawal diri saya dan menyerang Normah dengan parang. Normah kena tetakan saya di bahagian kening dan saya juga tetak kepalanya beberapa kali tapi saya tidak pasti berapa kali dan di bahagian mana kena.” [9] The unsworn statement was clearly a confession by the appellant that he killed the deceased but avoiding liability by saying that he had no intention to cause death. This is what he said in paragraph 12 of the statement: “12. Saya disini ingin menjelaskan bahawa saya sebenarnya tidak ada niat mahu bunuh si Persie. Saya memang mau tetak dia satu kali saja untuk cederakan dia tapi tidak untuk matikan dia. Kalau saya memang mahu bunuh dia maka saya tidaklah akan pergi menyerah diri selepas itu pula. Saya sebenarnya sangka kalau dapat cederakan dia maka dia akan takut dan keluar dari rumah sewa keluarga isteri saya. Saya sehingga sekarang tidak dapat jelaskan kenapa selepas Persie menerkam, saya tiba-tiba hilang kawalan ke atas diri saya sendiri.” [10] The appellant’s first ground of appeal against conviction was as follows: “The learned High Court Judge should not have called the defence on the charge of murder as it was obvious that the most important ingredient of murder, i.e. mens rea was absent. There was absolutely no evidence at all that the Appellant intended to murder anyone particularly the deceased.” [11] We found no merit in this ground of appeal. First of all, the calling of the appellant’s defence to the original murder charge was on the order of this court, which must be taken as if it was made by the trial judge himself. It was therefore not open to the succeeding judge to reopen the issue of whether a prima facie case had been established by the prosecution. Nor was it open to us, being a court of co-ordinate jurisdiction, to do so. 5 [12] The trial judge’s duty after the order was made by this court was only to consider whether the appellant’s explanation, if any, had cast a reasonable doubt in the prosecution case. But of course in doing so, the learned judge was bound by section 182A(1) of the Criminal Procedure Code (“the CPC”) to consider all the evidence adduced before the court, which necessarily includes evidence adduced by the prosecution at its stage of the case. [13] It was also contended under the first ground of appeal that the learned judge erred in failing to address her mind to the appellant’s defence of automatism, ‘uncontrolled action’ or temporary insanity which learned counsel described as ‘amuk’. There is no merit in the contention. [14] The maxim that a man intends the natural and probable consequences of his act is not to be avoided when dealing with the question of intention in murder trials: Eng Sin v Public Prosecutor [1974] 1 LNS 33; [1974] 2 MLJ 168 FC. To establish any of these defences, expert medical evidence was required because whether or not the appellant was driven by automatism or temporary insanity when he killed the deceased is in the realm of medical science. The burden was on the appellant to prove these defences on the balance of probabilities, i.e. the civil standard of proof. [15] No such proof was forthcoming from the appellant. As such there was nothing before the court for the learned judge to come to a finding that the appellant was temporarily insane at the time he committed the offence. In any event, the only reasonable inference to be drawn from the 6 proved facts was that the killing was intentional as it was motivated by a desire to teach the deceased a lesson. [16] The presence of motive negates the appellant’s claim of absence of mens rea, and the learned judge had given her reasons why she found the killing to be intentional. She was perfectly entitled to come to that finding unless it could be shown that she got the facts or the law or both facts and law wrong, which was not the case here. [17] As for the second ground of appeal, the appellant’s complaint was that: “The counsel who was assigned by the High Court to represent the Accused in his defence was an incompetence (sic) counsel in conducting the defence of the Appellant since he has no knowledge of what was the evidence given during the prosecution case and the line of defence of the Appellant presented by the previous assigned counsel and the Appellant was not fully advised and made understood of the weight of evidence in making unsworn statement.” [18] There are two parts to this ground of appeal. The first is a complaint that the assigned counsel who took over from the appellant’s previous assigned counsel was incompetent. The second is that the learned judge failed to explain to the appellant the weight to be given to his unsworn statement from the dock. [19] First, the complaint against the second assigned counsel. The law on incompetence of counsel in a criminal trial has been explained by the apex court in Shamim Reza Abdul Samad v PP [2209] CLJ 93 where Gopal Sri Ram FCJ delivering the judgment of the court said: 7 “In our considered judgment, the incompetence of counsel in the conduct of a defence in a criminal trial is a ground on which a conviction may be quashed provided that (i) such incompetence must be flagrant in the circumstances of the given case; and (ii) it must have deprived the accused of a fair trial thereby occasioning a miscarriage of justice. Nothing short will suffice. And in considering the question, an appellate court must have regard to the conduct of counsel as a whole and not merely to his or her failure in one or two departments.” [20] Going by the record of appeal, we must say that the appellant’s complaint is baseless. There is nothing to support his allegation that the counsel who took over from the first was flagrantly incompetent and that due to his incompetence, the appellant had been denied a fair trial, thereby occasioning a miscarriage of justice. [21] It must be remembered that at that stage of the trial, the counsel who took over from the first was only dealing with the defence case, which arguably is less onerous than dealing with the prosecution stage of the case. The appellant’s allegation that the second counsel had no knowledge of the evidence given during the prosecution case is pure speculation and must be disregarded. [22] The allegation of incompetence directed at the second assigned counsel is unfair and should not have been made as the lawyer was not given the opportunity to defend himself against such serious allegation as dereliction of duty by an attorney in defending a person charged with a capital offence. [23] The fact is, the appellant knew exactly what the case against him was, as he was present and represented by the first assigned counsel throughout the case for the prosecution. There was nothing complicated 8 in the evidence of the prosecution witnesses, particularly the evidence of the deceased’s wife who witnessed the attack and who herself was slashed by the appellant with the same parang that he used to slash the deceased. [24] Given the nature of the evidence, it is far-fetched to say that the appellant did not fully understand what the case against him was. More importantly, he did not dispute that the injuries were caused by him. His dispute was over the question of intention to cause death. [25] With regard to the second part of the second ground of appeal, the contention by learned counsel in his written submissions was that since the appellant had chosen to give unsworn statement from the dock, the learned judge was under a duty, before the appellant proceeded to enter his defence, to explain to him the weight that the court would give to such unsworn statement from the dock. [26] We found nothing of substance to the argument. What weight the court would give to the unsworn statement would depend on the court’s assessment of the entire evidence before the court and not based on the unsworn statement alone. It would be wrong for the learned judge to tell the appellant what weight she would give to his unsworn statement when he had not even uttered a word in his defence. [27] Since the appellant had not even started with his defence, the learned judge would not know what he was going to say in his unsworn statement, or whether he was going to give written or oral unsworn statement. If the learned judge were to tell the appellant that she would give less weight to his unsworn statement, that would be tantamount to 9 prejudging the defence case. In any event, the appellant’s counsel was there to advise him on the pros and cons of giving an unsworn statement from the dock. [28] Further, there is no dispute that when the appellant was called upon to enter his defence, the court interpreter had explained to him the 3 options open to him in making his defence, and he chose to give an unsworn statement from the dock. Obviously, he had been properly advised by his counsel before making the choice. This was confirmed by the appellant himself in his unsworn statement when he said: “1. Saya memilih untuk memberi keterangan bertulis dari kandang tertuduh. Saya memilih cara ini selepas mendengar penjelasan oleh peguam saya pada hari jumaat 23 Oktober 2015 di Penjara Tawau semasa dia datang melawat.” [29] The third ground of appeal was this: “The learned High Court Judge had failed to consider the evidence before her in totality before convicting the appellant had the learned High Court Judge applied her mind to the content of exhibit D1, had she applied her mind to the full content of exhibit D1 she would have found that the Appellant’s statement contained therein shall cast a reasonable doubt to the prosecution case and such failure had resulted the deprivation of the Appellant from being acquitted of the offence charged.” [30] The first thing to note with regard to this ground is that the appellant himself confirmed that the contents of his cautioned statement (exhibit D1) were in most parts similar to the contents of his unsworn statement from the dock. This is what he said in paragraph 2 of his unsworn statement: “2. Saya dengan ini menyatakan bahawa kebanyakan keterangan ini adalah sama dengan kandungan Pemeriksaan dalam Percakapan saya dibawah seksyen 112 KPJ yang mana 10 saya berikan pada C/Insp Ladamah Bin Haji Sulaiman pada 17/11/2011. Oleh itu saya mohon agar keterangan dalam percakapan tersebut ditandakan sebagai eksibit D1.” [31] We have compared the appellant’s cautioned statement with his unsworn statement from the dock and it is true that most parts of his unsworn statement are similar to his cautioned statement. In fact, on all material issues, what he said in his unsworn statement was a repetition of what he said in his cautioned statement. We had perused the learned judge’s grounds of judgment and found that Her Ladyship had indeed taken into consideration the appellant’s unsworn statement when at paragraph 4, page 5 of the Record of Appeal, she stated as follows: “…this court is of the view, the unsworn statement given by the accused from the dock is considered as an evidence and this goes on further for this court to evaluate the accused’s evidence and what weight is to be given.” [32] Thus, although the learned judge did not refer to the appellant’s cautioned statement in her grounds of judgment, the omission had not occasioned any substantial miscarriage of justice and is curable by the proviso to section 60(1) of the Courts of Judicature Act, 1964. For context, we reproduce below the whole of section 60(1): “60. (1) At the hearing of an appeal the Court of Appeal shall hear the appellant or his advocate, if he appears, and, if it thinks fit, the respondent or his advocate in reply, and the Court of Appeal may thereupon confirm, reverse or vary the decision of the High Court, or may order a retrial or may remit the matter with the opinion of the Court of Appeal thereon to the trial court, or may make such other order in the manner as it may seem just, and may by that order exercise any power which the trial court might have exercised: Provided that the Court of Appeal may, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour of the appellant, dismiss the appeal of it considers that no substantial miscarriage of justice has occurred.” 11 [33] It is clear from her grounds of judgment that the learned trial judge had considered the appellant’s defence with meticulous care and having done that, found that his explanation did not cast any reasonable doubt in her mind as to the guilt of the appellant. On the crucial issue of intention to cause death, the learned judge referred to Tham Kai You & Ors v PP [1976] 1 LNS 159 FC and then correctly applied the ratio decidendi of the case to the proved facts when she said: “6. The facts remained established in the prosecution stage that there were 23 injuries all over the accused’s body and this was consistent with injuries caused by a “parang”. The deceased’s cause of death was due by chop wounds on the right forearm which cut the ulnar artery and this was never denied by the accused that he had caused these injuries.