COLLEGE OF LAW GOVERNMENT AND INTERNATIONAL

STUDIES
SCHOOL OF LAW
UNIVERSITI UTARA MALAYSIA

A202 GLUP 4063 LAW OF EVIDENCE II

PREPARED BY:
NAME MATRIC NUMBER
MUHAMMAD ASHRUL HAIKAL BIN 255762
ASHRI

PREPARED FOR:
DR ANI MUNIRAH BINTI MOHAMAD

SUBMISSION DATE:
15TH MAY 2021
1.0 DETAILS OF THE CASE

Krishna Rao a/l Gurumurthi v Public Prosecutor and another appeal [2003] 3 MLJ 643
was an appeal case submitted before the Federal Court which was the last appeal
opportunity for the appellants to overturn the convictions and sentences passed by the
High Court which the appellants were found guilty for murder and sentenced to
mandatory death penalty by hanging.
The facts of the case were highlighted during the appeal before the Federal Court which
the court has accepted the facts as the same as it was during the original trial which the
two appellant were charged for committing murder under Section 302 and under Section
34 of Penal Code. There were four victims which were, the wife of the owner of the
jewelry shop (victim 1), the son of the owner (victim 2), the maid (victim 3) and the
watchman (victim 4) which all four victims were dead due to multiple stabs wound
inflicted by sharp object.
Furthermore, following the police investigations, the keys to the jewelry shop was
missing and subsequently found attached on the padlocks of the jewelry shop and all of
the jewelry in that shop was missing. However, during the original trial the judge did not
admit any of the caution statement of the appellants at the trial and at the end of the
original trial the original court held that both the appellant were guilty as the prosecution
succeeds in establishing beyond reasonable doubt case against the appellant.
Dissatisfied with the decision of the original trial, the appellants filed an appeal to the
Court of Appeal mainly on the issue of admission of the discovery statement which
subsequently Court of Appeal affirmed the findings of the High Court which led to the
current appeal before the Federal Court. Fundamentally, there were 3 issues submitted
before the Federal Court relating to this appeal which were (a) whether the trial judge and
Court of Appeal had erred in admitting the discovery statements purportedly given by the
appellants during the police investigation, (b) whether the trial judge and the Court of
Appeal failed to appreciate the circumstantial evidence adduce by the prosecution which
did not indicate their guilt for the offence of murder and (c) whether the trial judge and
the Court of Appeal failed to consider that the circumstantial evidence relied upon by the
prosecution failed to establish the elements of Section 34 of the Penal Code.

However, at the end of the appeal before the Federal Court, the court dismissed the
appeal and affirmed the decision of the trial judge and the Court of Appeal judge as there
were no error in law applied to the discovery statement and caution statement during the
original trial or appeal before the Court of Appeal. On the other hand, Federal Court in
this appeal highlighted two crucial notion on the discovery statement and caution
statement which are the admission of discovery statement is not found on the
voluntariness which only applicable to the admission of cautioned statement and the
evidence in adduce in the voir dire not applicable to be adduced in the main trial.
2.0 REFLECTION FROM THE CASE

Fundamentally, the most important notion of voir dire or trial within trial is to evaluate
the credibility of the admission of discovery statement and the admission of the caution
statement. Generally, a discovery statement must be distinguished from the cautioned
statement as the latter has a stricter requirement which must be abide in order to make it
permissible before the court of law. Therefore, it is the function of the court to determine
whether such statements should be accepted or not in the trial through the process of voir
dire.
The application of cautioned statement can be seen from Section 113 of Criminal
Procedure Code where such statement can be made to the police during the investigation
process and the statement can be used as defense to the accused subject to the request of
the accused or the prosecution. However, there is another guideline which must be
administered where the practice of cautioned statement must free from any oppression,
inducement, threat or promise towards the accused in order to extract the confession as it
will cause prejudice towards the accused.
However, the current application of Section 113 of Criminal Procedure Code allow the
provision to act retrospectively which the principle was established in the case of Public
Prosecutor v Datuk Haji Harun bin Haji Idris1 where HRH Sultan Azlan Shah FCJ held
that the amendment allowed the Section 113 of Criminal Procedure Code to has
retrospective effect to which means if the statement was recorded in the last 5 years it
will be still applicable to be used if the trial is conducted 5 years later. On the other hand,
the application of cautioned statement under Section 113 of the Criminal Procedure Code
cannot be applicable under the application of Section 27 of the Evidence Act 1950.
Furthermore, the distinguished traits between discovery statement and cautioned
statement is that the caution statement govern under Section 113 of Criminal Procedure
Code shall not be applicable to any statement made in the course of the application of
Section 27 of the Evidence Act 1950. On top of that, the power given to the learned judge
during the trial also different in term of the acceptance these two statements also had the
differences. In such context, the judge is empowered by the discretionary power either to
accept or reject the admission of the discovery statement meanwhile the approach is
different in relation to the caution statement which the judge need to employ well-found
conscious to determine whether the issuance of the caution statement is on voluntariness
or not.

1
[1977] 1 MLJ 14
 Besides that, the use of the admission of the discovery and admission of the cautioned
statement is limited by the practice of voir dire whereby the purpose of voir dire is solely
to determine the validity of the statement and nothing more than that. This fundamental
principle was mentioned in the case of Public Prosecutor v Kalaiselvan 2, where Augustine
Paul J citing the case of Ex Parte Whitelock; Re Mackenzie3 which the court held that
voir dire is a separate trial and shall not be treated as part of the main trial and the evidence
adduced in the voir dire should not be included in the main trial as it will cause prejudice
to the case of the opposition which the evidence adduce in the favour of another party.

3.0 RECOMMENDATIONS POST THE CASE

Basically, the first appeal commenced following the ground which the appellants
dissatisfied when the trial judge did not provide the reasons for the rejection of admission
of the discovery statement during the original trial although at the end of the process, both
appellate court affirmed the decision of the trial judge.
However, from my own personal perspective, I believe there is a small room for
improvement which in regards to the first ground of appeal. I personally believed that
even though the admission of the discovery statement is the discretionary power of the
trial judge either to accept or to reject such statement, it will not be wrong for the trial
judge to provide such reason in the circumstance where the court reject to admit such
statement.
The purpose of the court is as mechanism to serve the administration of justice,
nevertheless it will be very crucial for court to avoid unnecessary application to certain
matter as it will delay the process to achieve justice as justice delayed is justice denied.
Aside from that, the steps which probably could be taken by the trial judge to list the
reasons to reject the admission of the statement could possibly be the reason for the court
to avoid unnecessary workload as the administration of justice is crucial to be done
swiftly and neatly.

All in all, the practice of the trial judge providing the grounds of rejection and
acceptance to the admission of the statement should be consider as the opportunity to
ensure quick path in order to ascertain the administration of the justice can be done
properly and avoiding unnecessary application to the court and to the relevant parties.

2
[2001] 2 MLJ 157
3
[1971] 2 NSWLR 534
REFERENCES
Ex Parte Whitelock; Re Mackenzie [1971] 2 NSWLR 534

Public Prosecutor v Datuk Haji Harun bin Haji Idris [1977] 1 MLJ 14
Public Prosecutor v Kalaiselvan [2001] 2 MLJ 157