Empati Anak Mat Case Law
Empati Anak Mat Case Law
Empati Anak Mat Case Law
APPELLANT
AND
PUBLIC PROSECUTOR
RESPONDENT
CORAM:
James Foong Cheng Yuen, JCA
Wan Adnan Muhamad, JCA
Sulong Matjeraie, JCA
JUDGMENT
In the vicinity of the crime scene, PW24 noticed footprints leading to and from a spot some 10 meters off the left
side of the road, which PW24 believed to be the ambush
position where the person who shot the deceased lay in wait.
However, the mud-blocks with the accuseds foot imprint were
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took the shot gun, his parents were not at home. On arrival at
the place he selected, the accused said he hid his motorcycle
at the road side then made his way to a spot some 20 feet
away from the road side, where he took up an ambush position
and loaded the shot gun with one of 3 cartridges he was
carrying. According to the accused, Kusaimi usually went to
Tanjung Manis town every night and the accused was able to
recognize the light and sound of the motorcycle Kusaimi
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frequently used. The accused said that it was dark and drizzling
that night and that several motorcycle passed by his ambush
position but from the sound of their engines he knew it was not
Kusaimis. The accused said that at about 9.00 pm he saw and
heard 2 motorcycles heading towards Tanjung Manis. He
recognized the sound of the second of the two motorcycles
which was travelling behind as that used by Kusaimi, so he
waited until Kusaimis motorcycle was opposite him before he
fired and shot in the direction of his target. The accused said he
then observed the rider of the motorcycle fell down about 20
feet from where he had fired his shot. The accused said that on
moving forward a little from his ambush position he heard
voices speaking in Chinese from the spot where the motorcycle
had fallen. It was then he realized that he might have
mistakenly shot someone else. He said he did not go to check
on that person as he was frightened. Instead, he made his way
back to his longhouse (Rumah Jugah). On arrival back at the
longhouse between 10.00 pm and 11.00 pm, the accused said
he found his father fast asleep. He then put back the shot gun
in the room where it was kept by his father. He also put back
the cartridges and empty casing where they were kept by his
father. The next day (14.8.1998) he overheard people talking
about a person who had been shot dead the previous night. He
then confided and told his father that on the previous night he
had shot someone, not on purpose but by mistake.
See
Mr. Bian further contended that the trial Judge had erred
in his finding that there was sufficient evidence to prove that
the injuries sustained by the deceased were caused by the
accused and in admitting the evidence of a anonymous caller
implicating the accuseds father, as this is a hearsay evidence.
This anonymous caller never testified at the trial to corroborate
what the Investigating Officer (PW24) had said on the matter.
For this, adverse inference must be drawn against the
prosecution under s.114 (g) Evidence Act 1950, for failing to do
so.
accused told the police party that of the two cartridges, he had
used the rusty cartridge (P9(a)) to shoot the deceased. Both
exhibits were sent to the Chemistry Department at Kuching for
examination. The evidence of the Chemist (PW2), confirmed
that P9(a) and P10(a) were fired from P11(a).
PW2 also
testified that the two pellets (which were sent to him in a bottle
in envelope (E2)) were shot gun pellets of shot size SG.
PW22 testified that he recovered these two pellets from the
deceaseds chest during the autopsy. I also feel that this is a
finding of facts by the learned trial judge.
rely on it to prove the truth of the statement, but the fact that it
was made. As such the learned trial judge was of the opinion
that it was not a case in which adverse inference might be
drawn against the prosecution under s.114 (g) Evidence Act
1950. My view is that the learned trial judge did not misdirect
himself on this issue.
and where the accused had put the spent cartridge on his
return to Rumah Jugah.
the
accused
wanted
to
kill,
the
circumstances
17
judge was right to hold that the prosecution had proved its case
beyond reasonable doubt against the accused as charged. It is
my considered opinion that the trial judge did not err in his
findings.
like
this,
where
the
evidence
is
wholly
21
irresistible
22
witnesses are from the accused long house and padi field
which the accused said he was at the material time, is only two
hour boat ride. It is his factual finding that the said witnesses`
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t.t.
(DATO WAN ADNAN BIN MUHAMAD)
Judge
Court of Appeal, Malaysia.
Date: 31July, 2009
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For Appellant:
For Respondent:
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