MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT TAWAU CRIMINAL TRIAL NO.

T(45) 3 OF 2009 BETWEEN PUBLIC PROSECUTOR AND VETUS JUANIN

May it pleases. Introduction 1. The accused has been charged under Section 302 Penal Code and full trial was conducted. The prosecution called 7 witnesses to testify. The honourable court ruled that the prosecution established a prima facie at the end of the prosecution case and the accused called to enter his defence. The accused did not call any witnesses except himself.

Charge

2. The amended charge preferred against the accused is as follows:-

That you, on the 15th October 2004, at about 9.5 0 pm, at workers quarters No LQ/Block 2A, Kilang Kelapa Sawit Tong Len, Sabah, in the district of Kunak, in the state of Sabah, did murder Mansur Bin Aramsa and that
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you have thereby committed an offence punishable under Section 302 of the Penal Code.

Prosecution Case

3. Dr Jessie (PW1) conducted post-mortem on 19th October 2004 at 3.00 pm at Tawau Hospital on a deceased identified as Mansor Aramsa. The deceased was identified by the deceaseds wife (Sefa Herman). C/Insp. Wee, lance Corporal Detective Tony Ng and lance Corporal Detective Latip Ampaul were present inside the when the post-mortem was conducted. Based on the record by hospital, the deceased body was brought to the Tawau Hospital on 16th October 2004.

4. PW1 had conducted external and internal examination as well as collecting samples to be handed to the police.

5. On external examination; the deceaseds face and clothing were blood stained. There was a gapping laceration measuring about 4 x 3 cum on the right front of the neck. There was abrasion above this laceration and another abrasion below it. There was no other injury seen externally. The laceration wound looks like a hole on the front neck.

6. Internal examination; underlying the laceration were ragged laceration of the neck muscle, the right artery, right lobe of thyroid gland, the larynx., the oesophagus and fracture of the hyoid bone, thyroid cartilage, cricoids cartilage, fourth to seventh cervical vertebrae with laceration of the spinal cord. There was no other injury involving other
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parts of the body. Multiple pellets and plastic material were found inside the wound on the neck. The hyoid bone is located above the Adam apple on the front of the neck.

7. The pellets were grayish in colour, round measuring about 0.4 cm each. Some of the pellets were deformed. The plastic material is whitish in colour and irregular in shape. The pellets and plastic materials were consistent with shot gun cartridge.

8. Injury to the spinal cord and carotid artery caused fatality to the deceased. This is because the injury to the spinal cord and the level sustained by the deceased will cause paralyses of the diaphragm and respiratory muscles resulting in difficulty in breathing. Injury to the carotid artery will cause severe bleeding.

9. PW1 gave her opinion based on the injuries sustained there was no chance for the deceased to be saved if he was sent to hospital earlier. The time period of the deceased died after the injury was in a short period and probably a few minutes.

10. Based on the Post-Mortem Report (Exhibit P5), the deceased was brought to Tawau hospital on 16th 2004 and post-mortem was conducted 19th October 2004. That means there is a difference of three days. PW1 gave her opinion even though there was three days difference before the post-mortem was conducted, it will not make any difference to her findings as the deceased body was preserved in the hospital body refrigerator.

11. PW1 handed to the police blood specimen for DNA, two circular objects, an irregular plastic material and pellets retrieved from the wound on the neck and deceaseds clothing.
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12. PW1 opined that the presence and other foreign materials in the injury indicated that the deceased was shot at close range with a shot gun or shot gun like weapon. This is based on the single laceration on the neck internally there were multiple pellets and plastic material within the wound. Shotgun that is fired at close range caused pellets to travel together as a group together with the plastic casing. This would cause single injury on the surface the pellets and plastic casing have been found inside the wound. At long range the pellets start to disperse and will hit object at multiple sites. The plastic material or casing usually does not follow at that far distance.

13. PW1 in her opinion based on the laceration wound, the weapon was pointed from the front and directed to the neck.

14. PW1 testified that there was no sign of struggle from the deceased based on her external examination of the deceaseds body. This is because there was no injury in the form of bruise or abrasion or any other injury on the limbs or other parts of the body.

15. PW1 testified that she is qualified to make the comments as appearing on the first paragraph, page 4 of Exhibit P5 as she was trained and firearms injuries are party of her Pathology training.

16. PW1 testified that if the deceased was shot from a shotgun where the barrel is underneath the neck, the internal injuries would be directed upward towards the brain.

17. On 15th October 2004, L/Kpl Hassan Bin Habial @ Habiah (PW2) working at Pejabat Pertanyaan Balai Polis Kunak. At about 10.00 pm,
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PW2 received a call from the manager, Mr Chin of Tong Len Factory who said that one of his workers, a Timorese, has been shot by a Kadazan man. PW2 submitted the information received to District Crime officer, Chief Inspector Wee Devet Tan (PW9) and as instructed he lodged a police report.

18. On 15th October 2004, Mr Nickalls Chin Su Loong ( PW3) is the Mill Manager of Tong Len Palm Oil Mill at Sabahan Lahad Datu-Tawau highway. At around 10.00 pm, his staff by the name of Roberto (PW5) came to his house and told him that a person was shot in his house. Then PW3 rushed to Robertos house to see what actually happened. The person lying known as Mansor Aramsa was his staff and working as a security guard. He saw a person lying on a pool of blood in the living room and then after PW3 called Kunak Police Station.

19. When PW3 reached Robertos house, the body was still lying and he did do anything except to wait for the police to come.

20. On 15th October 2004, Roberto Oka (PW5) was staying at workers quarters at Tong Len Mill. He stayed there since 2003. PW5 was working as Foreman Boiler. There were two families inside the house, there are, PW5 and his wife (Rith Marselina Fai) (PW6) and Hendra and his wife. At the workers quarters, the accused was staying at next door to PW5. Emmanuel was staying at the back of PW5s house.

21. On 15th October 2004 at about 8.00 pm. They were having Rosario prayer. There were 10 people inside the house. Among those who were present were Emanuel, Ruth and Mansur (the deceased).

22. At about 8.00 pm, the accused knocked the door of his house and entered into his house. The accused brought along a weapon known as Senapang Bakakok. The accused pointed the gun to all of them and he stopped and pointed the gun to the deceased. PW5 was sitting in the gathering where the Rosario prayer was held inside the house. The distance between PW5 and the accused and the deceased was about 15 feet. The distance between the accused and the deceased was about three feet. After the accused pointed the gun to the deceased, PW5 saw the accused took out the cartridge. The accused kept the cartridges in his pocket. There were three cartridges. Two in his hand and one inside the gun.

23. After the accused pointed the gun at the deceased, the deceased said to the accused if I dont have any mistake what for you want to shoot me. The accused then said to all of them dont tell this thing to others, it is only amongst us. The accused asked us to continue with their prayer and went out from the house. The lighting in the house was very clear.

24. After the accused went out, they continued with their prayers. The praying sessions ended more than one hour. After the praying session ended, PW5 heard sound of a motorcycle. PW5 heard somebody knocked the door of his house. He opened the door; it was the accused that knocked the door.

25. The accused asked PW5 mana Mansur (where is Mansur?). Mansur stood up and went near to the door and the accused said to the deceased, biar ku tembak kau (let me shoot you). After saying that the accused shot the deceased.

26. PW5 demonstrated to court by stretching out his hand in from of him to show the distance between the accused and the deceased. PW5 also indicated also that the shot was directed to the front neck of the
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deceased. The accused did not react when the accused said biar ku tembak kau and the deceased did not say even a single word. PW5 knew that because he was beside the deceased and he saw the accused. Beside PW5, his wife Ruth (PW6) was also present. She was behind PW5.

27. After the accused shot the deceased. The deceased fell back in front of the door inside the house. The accused just disappeared after that by running away to his motorcycle. The lights outside and inside the house was very clear.

28. PW5 was very afraid and then immediately he ran to his managers house to tell him about the incident. The manager went to his house and saw the deceased was lying down with pool of blood in front of PW5s house. The manager (PW3) contacted the police and the police came to investigate.

29. PW5 testified that they themselves clock in and out punch card. That is, before getting into work, during break, after break and before leaving the place of work.

30. PW5 testified that he swears that what I see thats what I say and he did not agree with the suggestion by learned counsel that he exaggerated the facts of the case.

31. PW5 testified that at the end of the day the mills supervisor will check the clocking of the punch cards. And in reply to courts question, PW5 adamantly replied that he gave evidence on what he saw even though the deceased is not his relative.

32. On 15th October 2004, Ruth Marselina Fai (PW6), who is the wife of PW5, told the court that at about 8.00 pm, they were having Rosario prayers in her house. Also present and attended the prayer was PW5, the deceased, Emmanuel and few others which she cannot remember their names. At about 8.00 pm, the accused knocked on the door, no one opened the door but the accused came in and he brought a gun at that time and pointed the weapon to each of them and stopped at the deceased while pointing the gun. PW6 did not know what the problem between the accused and the deceased was. PW6 demonstrated how the accused was holding the gun by holding out her arms just below the chest level). The deceased was sitting and the accused was standing. Then the deceased stood up and PW6 they were talking and the accused took out one cartridge from the gun and there were two more cartridges in the right hands and the accused said to the deceased kita-kita saja yang tahu jangan sampai pada atasan which means that this in only between us, dont tell the superior and the accused said sorry. The deceased did not do anything when the accused pointed the gun to him. The accused asked them to continue with their prayer.

33. PW6 was about 15 feet from the accused at that time. PW6 heard the accused and the deceased was talking but he cannot hear it as it was not clear. The accused was about 10 minutes before he left the house.

34. The praying sessions took place about one hour and when the praying session ended, the accused knocked the door. PW5 opened the door and asked PW5 mana Mansor?. The deceased stood up and went to the front of the door. The accused said the deceased bagus saya tembak kau and he shot Mansor. The accused just ran off after that.

35. PW6 was standing beside the door when the PW5 opened the door. She was still there when the shooting incident happened. She
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knew was the one who knocked the door because he saw the accused when the accused asked mana Mansor?. When the deceased stood up and went to the front of the door, PW6 was standing beside the door.

36. PW6 demonstrated to court how the accused pointed the gun to the deceased by showing the position of the gun as pointing to the front neck of Mansor. After the deceased was shot, the deceased fell down backwards. The lighting in front of the house was very clear and bright as there was streetlight. After the deceased was shot, PW5 ran to the managers house.

37. On 15th October 2004 at about 8.00 pm, Herman Joseph @ Emmanuel Yusuf (PW7) was at PW5s house. They were having Rosario prayer. Also present in the house were PW5, PW6, the deceased, Sius Pati, Catildis, Benivantura and few others which he cannot remember their names. Sius Pati, Catildis, Benivantura has gone back to Indonesia. At about 8.00 pm, they started to burn the candles for the prayers, suddenly he heard somebody knocked the door and he saw the accused entered the house. The accused looked at each of them and stopped at the deceased. At that time the accused was pointing a gun to the deceased. PW7 was beside the accused, when the accused pointed the gun to the deceased. The distance between the deceased and the accused was about one arm length.

38. The deceased reacted to the accused by saying apa salah saya when the accused pointed the gun to him. He heard the accused replied but cannot remember what the reply was. The accused snapped his gun and took the cartridge and there are more cartridges and put in his pocket. After that, the accused said sorry and asked them to continue with the prayer. He shook hands with the deceased and left the house. After the accused left the house they continue with their prayer. The praying session ended about one hour later.
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39. After the praying session, PW5 offered them with drinks. PW7 heard someone knocked the door. PW5 went to open the door. PW7 did not know who knocked the door. PW5 just turned his heard and called for the deceased. The deceased went to the door and PW7 heard a gunshot and the deceased fell down. Beside PW7 and the deceased, PW6 was also at the door of the house. PW7 did not know what happened before he heard the sound of the gunshot.

40. PW7 testified that security guards will clock in and clock out the punch card when they report to work and leave the mill. Any security personnel on duty can clock the punch card. But the workers can punch the card themselves if the security guard were not at the place where the punch card machine was located. Any problem with regard to the clocking of the punch card will be referred to the accounts clerk.

41. On 15th October 2004, ASP Wee Devets Tan (PW9) was attached at IPD Kunak at District Crime Officer. At about 10.00 pm, he was been informed by PW2 regarding this case. PW9 then instructed PW2 to lodge a police report. The police report was then referred to him.

42. PW9 together with Lance Corporal Tony Ang (PW4) and other policemen went to the scene of crime. They departed from IPD Kunak at about 10.30 pm and reached the scene of crime, that is, LQ/Block 2A, workers quarters Tong Len Oil Mill, Sabahan, Kunak. The police team reached there at about 11.30 pm. When the police team reached there, PW5, PW7, Benny Ventura and few others were present. At the scene PW9 instructed PW9 to take photographs. PW9 was informed by witnesses at the scene the deceased name is Mansor Bin Aramsa, male, 39 years, Timorese. The deceased was lying inside the front door of PW5s house. The body was left undisturbed by the witnesses while waiting for the police party to arrive. The police team then went to the

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accuseds house, that is, just next door to PW5s house. The team seized few items from the house.

43. Post-mortem was conducted by PW1 on 19 th October 2004 at Tawau Hospital. PW9, PW4 and Lance Corporal Ampaul attended when the post-mortem was conducted. PW4 took photographs as instructed by PW9 at the hospital. PW9 identified all the photographs taken by PW9 as he was who gave the instruction.

44. At the hospital, PW1 gave to PW9 two items, that is, one plastic bottle with 50 pellets and the second item is the blood sample of the deceased. PW9 later kept the two items given by PW1 in an envelope and sealed it with staple and gave it to the exhibit store keeper for safe keeping.

45. After receiving from PW5, PW9 proceeded with the investigation. After the accused was arrested, PW9 with other policemen went to Sabahan River, Kunak to look for the gun, as it was believed to be thrown to the river. That happened 16th October 2004 (one day after the shooting incident) and the accused was arrested on 18 th May 2007. The gun was never found.

46. The cautioned statement of the accused which was introduced during the trial by the accused which was marked as 1D6 was recorded on 25th May 2007. This clearly shows that the accused gave her version of his story of the incident more than three years after the shooting. He ran off away from the scene of the incident.

47. From the investigation done by PW9 at the scene, it clearly shows that there was no sign of struggle or quarrel. This is based on the condition of the furniture in the house are not scattered and pool of
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blood only found on one place, that is, at the place where the deceased laid. PW5 also informed him that there was no quarrel or struggle between the accused and the deceased, before the deceased was shot.

The Accused Defence

48. On 12th October 2004, the accused received a salary of RM600.00 plus. He went to the office and asked the clerk why he received such amount. The clerk informed him that she based only on the punch and asked the accused to check his punch card. But the clerk that the accused met was not the one who prepared the salary. The accused admitted that he did not check his punch card on that day.

49. The accused asked the deceased with regard to the punch card. He did not mention when he met the deceased. When the accused asked the deceased with regard to the punch, the deceased replied that he did not know matter pertaining to the punch card.

50. The accused alleged that he was under paid for the month of September 2004 as the punch card was punched out earlier before the accused finished working. He never said who punched the card and on what date he noticed the card was punched earlier.

51. The accused alleged that the deceased punched his punched card. He never saw the deceased punch his card as his workstation to the place where the punch card was located is far apart.

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52. Its very strange that he never complained to the management with on the punch card issue. What these suggest? I suggest that he has nothing to complain as he has no basis.

53. The accused confronted the deceased on 12 th October 2004 as alleged by him about the punch card for the month of September 2004, the deceased replied that he did not know about the punch card. It is a baseless allegation by the accused the deceased punched his punch card.

54. The accused never got the alleged under- paid for the September 2004, as the accused never made a complaint to the management.

55. On returning from Kunak on 15 th October 2004, he went back to his house and had a drink. The accused was alone when he had a drink; he drank rice wine (talak).

56. The accused did not deny that he went to PW5s house on the first visit. The accused denied he brought along a gun. As alleged by him, he confronted the deceased and asked why the deceased punched. The deceased smiled and threw a challenge to the deceased to go the office if not satisfied. The accused left the house and went to this house.

57. The accused told the court that he bought the gun one week before the incident and he picked the gun at his before going to PW5s house. The gun was already loaded before he brought it to PW5s house. He went to PWs house and knocked the door, it was the deceased who opened the door. When the door was opened the accused alleged that he told the deceased to stop his friend laughing and making noises. He alleged that he warned the deceased not to
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punch his punch card again and if he continues to do the accused will report to the police that the deceased was holding a fake identity card.

58. The accused alleged that the deceased just stared at him and grabbed the gun that the accused was holding, but the accused hold it tightly, they were shoving and pushing at each other. The accused demonstrated how the shoving and pushing between them in an upward and downward position. The accused testified that suddenly the gun exploded. The accused saw the deceased fell down and the accused ran off.

59. The accused testified that he hold the gun with both hands ( shows the barrel is pointing upward and the butt at the bottom, the right hand is holding the butt and the left hand is holding the body). He alleged that the deceased grabbed the barrel with both hands. The accused demonstrated how the deceased grabbed the barrel which was pointing to his body.

60. The Accused testified that his intention to bring the shot gun to PW5s house was to warn them and stop making noises and stop mentioning the word drunk. The accused alleged that he did not have the intention to cause injury to them.

61. The accused testified that he worked overtime for about 100 hours in September 2004, but was unable to bring any documents to show that from the management. Even on Wednesday, that is his off day, he testified he went to work but still no document to support.

62. The accused testified that the security guard has no authority to punch the punch card on behalf of the workers. So, he admitted that the punch card can only be punched by workers themselves.
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63. The accused testified that he cannot see the place where the punch card machine was located as it was blocked by the mills building. The distance from his place of working was about 300 meters.

64. The accused admitted that he went to PW5s house on 15 th October 2004. In the house he saw there were many people gathering inside the house. He saw the deceased sitting the front door of the house. Upon seeing the deceased inside PW5s house, he then proceeded to go inside the house. The accused denied that he brought bakakuk and cartridges on his first visit to the said house. The accused testified he was in the house for about 5 minutes.

65. He alleged that there was a conversation between him and the deceased pertaining to punch card. He asked the deceased to go with him to the office to explain about the punch card.

66. The accused admitted that he brought bakakuk to PW5s house on the second visit and said that he just wanted to scare them. He testified that he deceased not to laugh and making fun of the word drunk. The accused admitted that the cartridge was inside the bakakuk.

67. The accused testified that he drank talak at his house and beers at the canteen. He still managed to ride his motorcycle from canteen to his house back. The distance from the canteen to his house was about 500 meters without any difficulty.

68. The accused did not know Timorese language and he only assume that they were laughing and making fun of him.
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69. The accused admitted that he never saw the deceased the accuseds punch card.

70. The accused said that he was having drinks of mantakuk with a person by the name of Din and on 15.10.2004 Din was drunk and was sleeping on the couch of the accuseds house.

71.

PW9 testified that a person by the name of Din Davila was arrested on that night of the scene. He was arrested in the living room of the accused. He was sleeping. Din was arrested and brought to Kunak police for investigation. When the police team arrived at the scene of the crime, the said Din Davila was sleeping and the police have to wake him up. The police found that Din was in a state of drunk with smell of liquor. Questions were asked to Din, Din did not know about the incident. It was confirmed by other witnesses such as PW5 and others, who said that, Din was not involved in the killing. Din was not arrested at the crime scene where the deceased was shot dead. Din was released later on as he was not involved in this case.

Elements of offence.

72.

The offence of murder is defined by section 300 of the Penal Code as follows:Except in the cases hereinafter excepted, culpable homicide is murder(a) if the act by which the death is caused is done with the intention of causing death;

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(b)

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

(c)

(d)

73. These paragraphs are to be read disjunctively, which means the prosecution can rely on either paragraph (a) or (b) or (c) or (d) to prove the offence of murder. The evidential requirements are different. Of the four paragraphs only paragraph (a) requires the prosecution to prove intention to cause death. Paragraphs (b) and (d) require proof of knowledge that the act could cause death while under paragraph (c) the only proof required is that the injury intended to be caused is sufficient in the ordinary course of nature to cause death. If reliance is placed on paragraph (c) two requirements must be met, namely: (i) (ii) 74. The injury was inflicted intentionally. The injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

It is not sufficient under paragraph (c) to merely establish that the intended injury caused death. The prosecution must further prove that the injury is sufficient in the ordinary course of nature to cause death. Whether the injury is sufficient in the ordinary course of nature to cause death is a question of fact.

75.

The elements of the charge that the prosecution needs to establish beyond reasonable doubt in the instant case are the following: (l) That the victim Mansor Aramsa had died.

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(2) That the victim died as a result of the shot wound on his frontal neck. (3) (4) That the wound was caused by the accused. That in inflicting the injury the act was committed by the accused with the mens rea or knowledge under section 300 of the Penal Code.

Court's duty at close of prosecution case

76.

At the close of the prosecution case the law requires the court to subject the prosecution's evidence to a maximum evaluation. This includes assessing the creditworthiness of the witnesses called by the prosecution. The test is laid down by the Federal Court in PP v. Mohd Radzi Abu Bakar [2006] 1 CLJ 457 as follows: "Put shortly, what the trial court is obliged to do under ss. 173(f) and 180 of the CPC is to ask itself the question: If the accused elects to remain silent, as he is perfectly entitled to do, am I prepared to convict him on the evidence now before me? See Dato' Mokhtar bin Hashim & Anor v. Public Prosecutor [1983] CLJ 101 (Rep); [1983] 2 CLJ 10; [1983] 2 MLJ 232. If the answer to that question is in the affirmative, then the defence must be called. And if the accused remains silent he must be convicted. If the answer is in the negative, then the accused must be acquitted."

77.

The first, second and third elements of the charge pose no difficulty as it is clear from the evidence that the deceased had died and that it was the accused's act that caused his death. The question is whether the accused's act amounts to murder within the meaning of section 300 of the Penal Code. Proof of intention or knowledge can only be gathered from inferences to be drawn from the established facts.

78.

One of the fundamental principles of criminal law, with the exception of strict liability offences is that an act does not constitute guilt unless done with a guilty mind, actus non facit reum nisi mens sit rea . Did the accused intend the bodily injury sustained by the deceased? If he did then his act is murder because the injury is sufficient in the ordinary course of nature to cause death. Once intention to cause the bodily injury is proved it does not matter if the accused did not intend to
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cause death. He is still guilty of murder. This is provided by illustration (c) to section 300 of the Penal Code which states:

"(c) A. intentionally gives Z. a sword-cut or club wound sufficient to cause the death of a man in the ordinary course of nature. Z. dies in consequence. Here A. is guilty of murder, although he may not have intended to cause Z's death." 79. There is direct evidence to show that the injury sustained by the deceased was caused intentionally by the accused as the actual assault was witnessed by PW5 and PW6.

80.

What is the quantum of proof required to prove intention or knowledge in a murder case at the close of the prosecution case? The starting point is section 180(1) of the Criminal Procedure Code (the Code) which provides that the burden on the prosecution at the close of its case is only to prove a prima facie case, not proof beyond reasonable doubt. What constitutes a prima facie case is defined by subsection 180(4) of the Code itself as follows:

"For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which if unrebutted or unexplained would warrant a conviction." 81. In Balachandran v. PP [2005] 1 CLJ 85 the Federal Court made the following observation on the standard of proof required at the close of the prosecution case:

"As the accused can be convicted on the prima facie evidence it must have reached a standard which is capable of supporting a conviction beyond reasonable doubt. However it must be observed that it cannot, at that stage, be properly described as a case that has been proved beyond reasonable doubt." 82. In that case counsel for the appellant had argued that the burden on the prosecution at the close of its case is to make out a case
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beyond reasonable doubt and not on a prima facie basis. This argument was rejected by the court as it is "contrary to the clear and plain language of section 180 and section 182A of the Code.

83. Thus, to establish a prima facie case, each ingredient of the offence need only be established on a prima facie basis. It is not necessary to prove them beyond reasonable doubt. This must be so because section 180(4) of the Code enunciates that a prima facie case is made out if there is credible evidence to prove each ingredient of the offence. Credible evidence is evidence that is capable of belief after a proper evaluation. It will be contrary to section 180(4) of the Code and against the weight of authorities if it were to be held that every element of the offence needs to be established beyond reasonable doubt at the close of the prosecution case.

84.

As the standard of proof at the close of the prosecution case is proof on a prima facie basis the quantum of proof to establish intention or knowledge at the close of the prosecution case must likewise be prima facie proof that the act was committed with the requisite intention or knowledge. If a person stabs a vital part of another person's body with a knife causing his death, in the absence of evidence to the contrary, prima facie his act must be presumed to have been done with the intention or knowledge within the meaning of section 300 of the Penal Code.

85.

In the present case the unchallenged opinion of the forensic pathologist is that the wound inflicted on the deceased was a shotgun wound. The act of shooting involves deliberation, which means the wound was inflicted intentionally by the accused.

86. The accused's act of shooting the deceased must therefore fall under

any of the acts constituting the offence of murder under section 300 of the Penal Code, namely:

(a)

it was done with the intention of causing death; or

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(b) (c)

it was done with the intention of causing such bodily injury as the accused knew to be likely to cause death; or it was done with the intention of causing bodily injury to the deceased and the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death; or it was done with the knowledge that the act was so imminently dangerous that it must in all probability cause death to the deceased and he committed such act without any excuse for incurring the risk of causing death or the injury inflicted.

(d)

Reply to the accused written submission

87.

The accused is not a reliable and credible witness.

a. The cautioned statement by the accused. i. The cautioned statement by the accused which was tendered by the defence counsel should be treated cautiously. This is because the cautioned statement was recorded nearly 4 years after the shooting where the deceased was shot by the accused. The accused ran away and he never surrendered to show his regret on the incident.

ii. The prosecution humbly submit that, most of the contents of the cautioned statement are not true and purely an invented story by the accused.

iii. For example, the accused testified that there was struggle between him and the accused, but the reality of fact does not lean to his side. All the prosecution witness and even the Pathologist as an independent vehemently said that there was no struggle.
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iv. The Investigating Officer who went to the scene of the crime after being informed confirmed that there was no indication of any signs of struggle. The furniture in the house was in good order and there were no signs of injuries seen of the deceased.

v. The evidence given by the accused is in total contrast with the evidence given by the eye witnesses and the forensic pathologist evidence.

b. This can be seen clearly where the accused testified in his defence that there was no grappling and struggling between the deceased and the accused by the act of pushing and shoving of the bakakuk from bottom to the neck of the deceased.

i. If indeed the pointing of the barrel was from bottom, the pellets will be scattered towards the head but in this case, the pellets were found at the area surrounding the neck. There was no other place where the pellets were found, except to the place as mentioned by the forensic Pathologist. Scientific proof the accused is totally. I humbly submit that the accused in inventing his story but failed as the fact shows otherwise.

88.

At page 17 of the Accused Written Submission, the counsel stated that the court cannot regard the evidence of the prosecution given during examination in chief in isolation as acceptable. It can only be acceptable when it found to be consistent with the prosecutions story,
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it stands the test of cross-examination and it fits in with the rest of the evidence.

89.

The prosecution humbly submitted that, the evidence adduced by the prosecution witnesses is consistent with incident. It is consistent with the evidence given by the Forensic Pathologist who has done the internal and external post mortem on the deceased as well as by the Investigating Officer. In fact, PW5 and PW6 adamantly stated in his evidence that he testified on what saw. The prosecution submitted that all the prosecution is credible witnesses. They have no reason to tell the untruth to the honourable court.

90. The defence counsel clearly misquoted on what actually transpired during the trial. I reproduce the true version on what actually transpired based on page 79 of the Notes of Proceedings :-

DC: I put it to you that you were exaggerating the incident when you said Vetus came in on the first occasion and started pointing the gun to all of us.

PW5: No, I swear what I see thats what I say.

DC: I put it to you that when Vetus came to your house he was only interest to talk to the deceased over punching cards?

PW5: That I dont know but he came with a weapon.

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DC: I put it to you that Vetus was angry with the deceased because the deceased clocked out Vetuss card when Vetus was still working in the Mill?

PW5: I dont know.

91.

Based on this extract from the Notes of Proceedings, PW5 never ever said the accused was angry the deceased. I submit the Defence Counsel is misleading the fact.

92.

The counsel again misleads the court on to what actually transpired based on the Notes of Proceedings at page 95 line 2372.

DPP: What was your distance between you and Vetus at that time?

PW6: [indicates the distance as from where she is sitting to the middle of counsel bench, about 15 feet].

DPP: Did you hear what Vetus says to Mansor when Mansor stood up?

PW6: I can hear but not clear, I cant remember.

93.

I humbly submit, the question is so clear, what Vetus said to Mansor when Mansor stood up, its not on what the accused and deceased
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conversation, as the conversation yet to begin. We must bear in mind that the distance between PW6 and the accused was 15 feet. 15 feet is not a short distance.

94.

On the testimony of PW7, I reproduced the relevant part based on the Notes of Proceedings so as not to mislead the honorouble court.

95.

Page 112 of the Notes of Proceedings from line 2864 to 2881:-

DPP: Can you tell us what happened when you were in Robertos house on 15th October 2004 at about 8.00 pm.

PW7: At that time we started to burn the candles for prayers suddenly a person knocking on the door after that Vetus entered. And he looked at each one of us and he stopped at Mansor. What they were saying I cant remember but at that time Vetus was pointing gun at Mansor.

DPP: When Vetus was pointing gun at mansor, where were you?

PW7: I was beside Vetus.

DPP: What was the distance between Vetus and mansor when Vetus pointed a gun at him?

PW7: About one arm length.

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DPP: What was the reaction of Mansor when Vetus pointed a gun at him?

PW7: When Vetus was pointing the gun to Mansor, Mansor said apa salah saya.

DPP: What was the reply from Vetus?

PW7: Vetus replied but I cant remember what he said.

96.

I humbly submit, that the sentence I heard the conversation but I cant remember is nowhere to be found in the Notes of Proceedings. The counsel is adding something which is not there.

97.

The counsel submitted just because the incident took place in a living room of the workers quarters and considering the size of workers quarters, then every witnesses must know or heard about the conversation. I humbly this is a mere speculation by the defence counsel.

98.

From the Notes of Proceedings, we know what was the distance between PW5 to the deceased and the accused. Also the distance between PW6 and the accused and the deceased. We cannot at all assume they must heard the conversation.

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99.

I humbly submit just because the defence counsel failed to shake the credibility of witnesses, then the witnesses are not telling the truth. This is totally a baseless argument by counsel without any support from any authorities.

100. The defence counsel submitted that since PW5, PW6 and PW7 belong to the same tribe, same religion as the deceased. They are from the same country. Therefore the tendency for them to sympathize with the deceased cannot be ruled out. Therefore they cannot be considered as independent witness.

101. I humbly submit that, this is a baseless statement from the defence counsel. There is no evidence be it from the trial itself or from the any authorities this statement.

102. I would like to refer to Alaggandiran a/l Vellu v Public Prosecutor [2010] 3 MLJ 647, 653 where the court stated that :[14] There is no doubt that Viveganathan (SP3) and Nagentharan (SP7) are crucial prosecution witnesses on whose testimony the charge against the accused rests heavily. If their testimony is rejected, then the accused must be acquitted. However, we have no reason to interfere with the trial judge accepting their evidence as credible. [15] SP3 is the brother of the deceased. His evidence is entitled to credence until cogent reasons for disbelief can be advanced. He was at the scene. He was an eye witness. He saw the accused stab his brother. There is no doubt he is an interested witness in that he would most certainly wish to have the perpetrator/s punished for the death of his brother. All that the law demands is that SP3 s evidence should be scrutinised with sufficient caution to safeguard against any temptation to falsely implicate the accused. We are satisfied that the trial judge has exercised
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sufficient degree of caution in accepting SP3 s evidence. SP3 s evidence on the issue of the deceased being stabbed with a knife is also supported by the pathologist, SP9 s findings. In accepting SP3 s evidence, the trial judge stated: Setelah mendengar dan melihat SP3 memberi keterangan, saya mendapati ia seorang saksi yang boleh dipercayai. Ia tidak memperlihatkan kepada saya sebagai seorang saksi yang berat sebelah. Keterangannya bahawa si mati telah ditikam dengan sebilah pisau di perutnya beberapa kali adalah disokong dan konsisten dengan jenis-jenis kecederaan yang dijelaskan oleh SP9. SP9 juga ada memberikan pandangannya bahawa kecederaan yang dialami oleh si mati adalah disebabkan oleh senjata tajam.

103. I humbly submit that, PW5, PW6 and PW7 are entitled to credence until cogent reasons for disbelief can be advanced. They were at the scene. They were eye-witnesses. The defence counsel failed to bring any cogent reasons to disbelief them.

104. At page 25 of the Written Submission by the counsel, the counsel stated that The Defence wouls respectfully refer the Court to Section 114(g) ofg the Evidence Act for failure to call Mr Den Davila.

105. Learned Counsel at page 24 of his Written Submission stated that, DW1 was subjected to vigorous cross-examination by the Learned DPP from 2th August 2010 to 10th August 2010. I submit that, the learned counsel is putting something in his submission which is not right. The cross28

examination took from 2 to 4th August 2010 but was later adjourned to 10th August 2010, as the counsel wished to recall PW9 eventhough, the prosecution strongly objected as to relevancy.

106. I humbly during the cross-examination of the accused (DW1) his credibility is put to questions, as he was not telling the truth on what actually transpired during the accused. Namely:-

a. His evidence is totally not in tangent with the evidence by an independent witness, that is, the Pathologist.

b. Totally in conflict with the evidence given by PW5, PW6 and PW7 and the counsel failed to shake the credibility of these witnesses.

c. He accused somebody to punch his punch card but he cannot who punched it.

d. He thought the witnesses were trying to belittling at him but he could not understand what the witnesses were communicating among themselves.

107. The counsel page 24 of his Written Submission stated that During cross-examination of DW-1, it was revealed that on the night of the incident, the police arrested the friend of DW-1 by the name of Den Davila. Further the counsel stated that PW-9 further testified that the police found the said Den Davila sleeping in the living room of Vetuss house.

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108. The Defence then refers to Section 114(g) of the Evidence Act 1950 and draw the inference against the prosecution for failure to call Mr Den Davila.

109. For ease of reference I reproduce Section 114(g) of the Evidence Act :-

114. Court may presume existence of certain fact. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume (g) that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;

110. The illustration is not mandatory but depends on the circumstances of the case, and, particularly in the materiality of the witnesses not produced (see Lau Song Seng v Public Prosecutor [1981] 1 SLR 663 (CA).

per Mohamad Azmi SCJ in Munusamy v Public Prosecutor [10987] 1 MLJ 492, 494 (SC) :

It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It
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may be drawn from withholding not just any document, nut material document by a party in his possession, or for non-production of not just any witness but an important and material witness to the case.

111. Illustration (g) Presumption from withholding evidence The illustration is not mandatory but depends on the circumstances of the case, and particularly in the materiality of the witnesses not produced (see Lau Song Seng v Public Prosecutor [1998] 1 SLR 663 (CA).

per Mohamad Azmi SCJ in Munusamy v Public Prosecutor [1987] 1 MLJ 492, 494 (SC):

It is essential to appreciate the scope of section 114(g) lest it be carried too far outside its limit. Adverse inference under that illustration can only be drawn if there is withholding or suppression of evidence and not merely on account of failure to obtain evidence. It may be drawn from withholding not just any document, but material document by a party in his possession, on for non-production of not just any witness but an important and material witness to the case.

Generally the courts are reluctant to drawn an adverse inference against the prosecution. As Yong Pung How CJ (Singapore) said in Khua Kian Keong & Anor v Public Prosecuor [2003] SCHC 238; [2003] 4 SLR 526, 538 at paras [34] [36]:

Clearly this is a discretionary and not a mandatory inference: Chua Keem Long v PP [1996] 1 SLR 410, Chin Sze Chang v PP [2002] 4 SLR 523 and Satli bin Masot. The appellate court has to
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evaluate if the trial judge had exercised his discretion correctly. Strict criteria have been stipulated before this adverse inference can be drawn against the Prosecution, namely that:-

(a) The witness not offered was a material one: Chua Keem Long, Lau Sing Seng v PP [1998] 1 SLR 663 followed by Satli Bin Masot.

(b)The Prosecution was withholding evidence which it possessed and which was available: Ang Jwee Herng v PP and Amir Hamzah bin Berang Kuty v PP [2003] 1 SLR 617; and

(c) This was done with the ulterior motive to hinder or hamper the Defence: Ang Jwee Herng, Wong Leong Chin v PP [2001] 1 SLR 146 and Chia Sze Chang. The court is generally reluctant to draw this inference against the prosecution. The court explained the rationale in Chua Keem Long: The discretion conferred upon the prosecution cannot be fettered by any obligation to call a particular witness. What the prosecution has to do is to prove its case. It is not obliged to go out of its way to allow the defence any opportunity to test its evidence. It is not obliged to act doe the defence. Various guidelines have been formulated to decide what constitutes a material witness, such as whether the absence of the witness(es) would lead to the demolition of the Prosecutions case: Ang Jwee Herng, and whether the witnesses called sufficiently established the Prosecutions case so that any other witnesses were not essential: Chia Sze Chang, R Yoganathan v PP [1999] 4 SLR 264 and Chua Keem Long. Although I found that
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Sairis evidence alone did not establish the Prosecutions case, I decided that the other police officers were not material or essential witnesses. In previous cases when I drew adverse inferences, I found the witnesses material only when the witnesses called did not sufficiently established the Prosecutions case. In addition, the evidence of the other witnesses who were not called was ascertainable. For instance, in Sahadevan s/o Gunalan v PP [2003] 1 SLR 145, there was clearly another person who witnessed the incident concerned. The Prosecution had relied solely on the complainants evidence, which has serious inconsistencies affecting his credibility. The complainant alleged that a passerby had witnessed the incident, but the Prosecution did not call him to corroborate the complaints account. Likewise, in Khoo Kwoon Hain v PP [1995] 2 SLR 767, the victim of a sexual offence had testified about complaining to her aunt, but the Prosecution failed to identify this aunt or call her as witness to corroborate the victims account. In another case, Lau Song Seng v PP, I held that there was scant evidence of a conspiracy, and the Prosecution did not call a witness who undoubtedly had personal knowledge of the alleged conspiracy. In all these cases, there was no doubt that other witnesses had cognizance of the incidents concerned, but the Prosecution had failed to call on them to testify. 112. Let us see what actually transpired from the Notes of Evidence from pages 209 to 214 on the evidence given by PW9. PW9 testified that there was a person by the name of Den Davila age 29 years who was arrested on 15 th October 2004. Den Davilla was arrested inside the accuseds house who stayed just next house to the Robertos (PW5) house.

113.

Den Davilla was arrested at the living room and he was sleeping when he was arrested by PW9. PW9 had to wake him up as he was sleeping. Den Davilla was in state of drunk and smell of liquor from his body.

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114.

From the evidence of DW1 (the accused) , Den Davilla was never with the accused at any matter pertaining to the shooting. This were confirmed by PW5, PW6 and PW7 who happened to be at the scene of crime.

115.

I humbly submit that, there was no withholding or suppression of evidence and not merely on account of failure to obtain evidence. I also submit that Den Davilla is not an important and material witness to the case as he has no role played to this case. He did not see how the incident happened.

116.

Exceptions to Section 300. The counsel invoked Exception 2 and Exception 4 to Section 300. I reproduced Exception 2 and Exception 4 to Section 300 :-

Exception 2 - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law, and causes the death of the person against whom he is exercising such right of defence, without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. Exception 4 - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner.

117. Exception 2 deal with private defence by the offender and Exception 4 deals with the commission of the culpable homicide without
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premeditation in a sudden fight in the heat of passion upon a sudden quarrel.

118. I humbly submit that there was no issue of private defence here. From the evidence adduced by Pathologist and eye-witnesses at the crime scene it was very clear that the accused was the one who came to the deceased with his bakakuk and shot at the deceased at this throat.

119. I also submit that there was no fighting by the deceased to the accused. Independent witness, that is, the Pathologist testified and opined that there was no sign of struggle by the deceased as there was no injuries found to show an indication of struggle. From eyewitnesses also it was clearly shown that there was no fighting between the deceased and the accused before the accused shot the deceased.

120. Explaining how intention under the third limb of section 300 of the Indian penal Code was to be decided, the Indian Supreme Court in Virsa Singh said:

in considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidney of the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is heart or a kidney or bowels, he cannot be said to have intended to injure them, of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense: the kind of enquiry that twelve good men and true could really appreciate and understand
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Conclusion

121. I humbly submit based on the afore-mentioned grounds that I have stated, the accused failed to cast a reasonable doubt and the prosecution succeed in establishing beyond reasonable case.

AMIR HAMDZAH BIN OTHMAN Deputy Public Prosecutor

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