SUMMARY TRIAL END OF PP’S CASE Evaluation of prosecution case

SUBMISSION AT THE CLOSE OF PROSECUTION STAGE  When the case for the prosecution is concluded, the court shall consider
whether or not the prosecution has made out a prima facie case on the
SUBMISSION BY PARTIES
offence charged.
 It is the practice that at close of the prosecution case, the parties are  Section 173(f)(ii): If, however, the court finds that the prosecution has
allowed to make submission on the prosecution evidence. not made out a case, the accused shall be acquitted
 There are, however, no statutory provisions relating to submissions at the  Section 173(h), (l): on its finding that a prima facie case has been made,
close of the prosecution case. the court shall upon the accused to enter his defence.
 In a practice direction by Lord Parker CJ (see Practice Note [1962] 1 All o Section 173 (h)(iii), Prima facie case is made out:
ER 448), referred to in PP v Sidek bin Abdullah, there is no case to answer  Where the prosecution has adduced credible evidence
may properly be made and upheld (submission by the defence to proving each ingredient of the offence which if
discredited the prosecution’s case): unrebutted or unexplained would warrant a
o When there has been no evidence to prove an essential conviction.
element in the alleged offence  The prosecution able to bring so credible evidence and
o When the evidence adduced by the prosecution has been so the accused did not rebut the said evidence
discredited as a result of cross-exam or is so manifestly  The fundamental requirement at the close of the prosecution case is that
unreliable that no reasonable tribunal could safely convict on it. the judge must judicially evaluate the evidence.
 The submission by the parties would focus on the evidence, how it is to  In evaluating the evidence, the judge must conduct a maximum
be perceived and the law to be applied [PP v Jorge Enrique] evaluation of the evidence.
o And whether the totality and quality of the adduced evidence is o To see whether there are any infirmities, gaps or contradictions
sufficient to constitute a prima facie case. that are so material as to affect the main ingredients of the
 The court after hearing arguments of such submissions, would rule as to offence with the result that no prima facie case has been made
whether the prosecution has made out a prima facie case as alleged in out and an acquittal should be ordered.
the charge (s). o To assess carefully and judiciously the credibility of the
 If so, the accused would be called upon to answer the charge or charges prosecution witnesses and the accuracy of their assertions.
against him. o Any reasonable and favourable inferences that may be drawn in
 Marzuki Mokhtar v PP: On the other hand, if the court rules otherwise, favour of the accused must be drawn.
the accused at that stage is entitled to be acquitted and discharged.  Mr Losali v PP:
o Purpose of maximum evaluation- to test the credibility of the
prosecution’s witnesses and at the same time to ensure all the
requisite ingredients of the offence has been made out
  PP v Anwar Ibrahim: o BNM received a cheque for RM 22.2 million from Bank Simpanan
o Taken in its totality, the force of the evidence must be such that, for such a subscription.
if unrebutted, it is sufficient to induce the court to believe in the o By forging the signatures of his superiors, Harun was able to
existence of the facts stated in the charge or to consider its remit this money to the account of the appellant at a branch of
existence so probable that a prudent man ought to act on the Bank Bumiputra at Menara Dayabumi, where it was credited
supposition that those facts existed and did happen. into the account of Che Man & Partners and subsequently paid
 Arulpragasan a/l Sandaraju v PP: out on cheques issued by the appellant.
o Put simply, for the court to decide to call the accused to enter o Harun was charged with CBT and two alternative charges of
his defence, there must be the kind that the evidence before it cheating and theft. He pleaded guilty to the 2nd alternative
upon which it is entitled to make up its mind that the accused charge of theft and was sentenced to 5 years imprisonment.
committed the offence and to find him guilty if no evidence from o The appellant was subsequently convicted of abetting Harun in
the accused is forthcoming. committing theft and he then appealed.
 PP v Mr Losali & Anor: o In allowing the appeal, the court held that Section 378 of Penal
o The question to be asked before an accused is called to enter his Code, the subject of theft must be ‘movable property’ which, by
defence is whether the accused could be convicted of the the manner they are defined in Section 22 of Penal Code, must
offence if he opts to remain silent refer to corporeal property.
 The process of evaluating the evidence involves the court considering o What Harun did was not to move movable property with the
whether: intention of taking the same property out of the possession of
o Every element or single ingredient of the offence is made out BNM but to manipulate things. No cash money passed from
[Mohd Asmadi Yusof v PP]; BNM to Bank Bumiputra.
o The accused is implicated in that a nexus is established between o The fact was Harun did not move the money. Rather the money
him and the offence; came from the possession of Bank Bumiputra and not BNM and
o The evidence is accurate and credible Bank Bumiputra on its part consented to the money being paid
out.
1st factor: Ingredients of offence o Harun did not commit theft under Section 378 and accordingly
the appellant could not rightly have been convicted of abetment
 The prosecution must, in the first instance, make out ingredients of the
of theft by Harun.
charge with the evidence adduced
 Periasamy s/o Sinappan v PP: the COA allowed the appellant’s appeal
 Che Man Bin Che Mud v PP:
against conviction as it noted that the appellate judge appeared to have
o The appellant, an advocate and solicitor was involved with
treated the actus reus of CBT to be completed as soon as the appellant
Harun, a clerk of BNM
certified, approved and paid out of the loan.
o Harun was responsible for handling cheques for advance
o the offence of CBT is only an offence under Section 405 ie to
subscription for Government securities.
convert, dispose or to appropriate property if it is done with a
 dishonest intention, which constituted the mens rea of the  Looi Kow Chai v PP: however, this does not mean that the prosecution
offence. has to prove its case beyond a reasonable doubt at this intermediate
o Negligence, however gross, cannot be equated with the stage.
definition of dishonesty under the Penal Code. Therefore,  What amounts to credible evidence:
Periasamy was acquitted. o Evidence of witnesses
o Corroboration of witnesses’ evidence
2nd factor: nexus with offence
o Circumstantial evidence
 PP v Intairan a/l Renganathan: The evidence adduced must implicate the
Evidence of witnesses
accused in that a nexus must be established between him and the
offence.  The evidence may be the direct evidence of witness
 PP v Mohd Bandar Shah bin Nordin: the accused were charged with an  Direct evidence is evidence of facts in issue
offence under Section 39B(1)(a) of DDA.  In the case of testimonial evidence, it is evidence about facts in issue of
o It was held that on the evidence, there was no nexus or link which the witness claims to have personal knowledge
between the black bag and/or the dangerous drugs found inside  For example, ‘I saw the accused strike the victim’ – Blackstone’s Criminal
the black bag and the accused so as to connect them with the Practice 1991, cited in PP v Magendran Mohan
crime which was of no significance when viewed in isolation
unless there were other sufficient evidence to implicate them. Corroboration of witnesses’ evidence
 It is very important to prove that there is a link between the accused and  Jamaludin Md Kassim v PP: Under Section 134 of Evidence Act, there is
the offence.
no requirement for any number of witnesses to prove a fact
3rd factor: evidence is credible  PP v Zainal Ismail: while the evidence is that of the testimony of
witnesses, there are however, certain classes of witnesses who are not
 It is incumbent that there be credible evidence on each and every reliable and whose evidence call for corroboration.
essential ingredient of the offence.  The evidence of these witnesses where there is a requirement for
 PP v Mok Kar Poh: Credible evidence is evidence which has been filtered corroboration are:
and which has gone through the process of evaluation. o Child witness (Section 133A Evidence Act, Mohd Hanafi Ramly v
 Evaluation concerns the veracity and accuracy of recollection of the PP)
witness and an assessment to what extent (if any) that witness’s evidence o Accomplice (Section 133 Evidence Act, Mohd Haikal Mohd Karib
has been confirmed, explained or contradicted by the evidence of other Saddaly v PP)
witnesses. o Evidence in sexual cases (Ahmad Nazari Abd Majid v PP)
 PP v Ong Cheng Heong: the adduced evidence must be subjected to a
maximum evaluation as tested in cross-exam *required as a rule of prudence, as such allegations are easily made
 PP v Peter ak Merupi: maximum evaluation means applying the ‘beyond but difficult to deny.
reasonable doubt’ test
Circumstantial Evidence  It is a well-established principle of criminal law that the general burden
of proof throughout the trial is on the prosecution to prove beyond
 Circumstantial evidence is evidence of relevant fact, ie facts from which
reasonable doubt the guilt of the accused.
the existence or non-existence of facts in issue may be inferred.
 Sochima Okoye v PP: There is no similar burden placed on the accused to
 In the absence of direct and positive testimony of eye- witnesses, the
prove his innocence
prosecution may rely on circumstantial evidence.
 Section 173(m) of the CPC provides that:
 Where circumstantial evidence is relied on, the court may infer from the
o (1) if the court finds that the prosecution has proved its case
facts proved, other facts necessary to prove the element of guilt.
beyond reasonable doubt, the court shall find the accused guilty
 Circumstantial evidence is evidence of surrounding circumstantial which, and he may be convicted on it and the court shall pass sentence
by undersigned coincidence, is capable of proving the guilt of an accused according to law (CPC section 173 (m)(ii));
person with mathematical accuracy. o (2) if the court find that the prosecution has not proved its case
 PP v Muniandy a/l Suppiah: Circumstantial evidence must be of such a beyond reasonable doubt, the court shall record an order of
nature that, if taken together, it could be said to point irresistibly to the acquittal (CPC section 173(m)(iii)).
guilt of the accused person
 The circumstantial evidence must be complete and comprehensive. Proof beyond reasonable doubt
 This does not mean that there is any particular or special method of
 The case against the accused must be established by positive proof.
proof.
 Mere suspicion or probabilities cannot be the basis of conviction.
 However, the court must guard against the danger of not considering
 The accused ‘must be’ and not ‘may be’ guilty
circumstantial evidence in its proper perspective.
o Public Prosecutor v Saimin
SUBMISSION AT CLOSE OF DEFENCE o Public Prosecutor v Azman Bn Ismail
 Suspicion however grave cannot take the place of positive proof -
 On close of the defence, the accused may sum up his case if the accused Palvinder Kaur v State
or his witness give evidence.  Arulpagasan a/l Sandaraju v PP: It is trite law that the onus is on the
 Section 174(b): the accused, in summary trials ‘may sum up his case’ prosecution throughout the case to prove the charge against the accused
 Section 174(c): Where the accused has adduced evidence, the beyond all reasonable doubt.
prosecution has the right of reply  On the part of the accused, it is sufficient for him in his defence to on
Standard of proof at the end of defence’s case cast a doubt only the prosecution case to entitle him to an acquittal.
 Mah Kok Cheng v R: The duty on the part of the court is to consider the
 Section 173(m)(l): The court at the conclusion of the trial, shall consider whole evidence as to the guilt of the accused on the beyond reasonable
all the evidence adduced before it and shall decide whether the doubt test
prosecution has proved its case beyond reasonable doubt.
  What constitutes in law ‘reasonable doubt’ was explained in Miller v  But on whether the prosecution has satisfied the court on the case as a
Minister of Pensions, referred to in PP v Krishna Rao a/l Gurumuthi whole as to the accused’s guilt beyond reasonable doubt.
o It does not reach certainty, but it must carry a high degree of  The following test was laid down n Mat v Public Prosecutor: The correct
probability. law for magistrates to apply is as follows.
o Proof beyond reasonable doubt does not mean proof beyond a o If you accept the explanation given by or on behalf of the
shadow of doubt. accused, you must of course acquit.
 The law would fail to protect the community if it admitted fanciful o But this does not entitle you to convict it you do not believe that
possibilities to deflect the course of justice. explanation, for he is still entitled to an acquittal if it raises in
 If the evidence is so strong against a man as to leave only a remote your mind a reasonable doubt as to his guilt, as the onus of
possibility in his favour which can be dismissed with the sentence ‘of proving his guilt is throughout on the prosecution
course it is possible but not in least probable; the case is proved beyond o If upon the whole evidence you are left in real state of doubt,
reasonable doubt, but nothing short of that will suffice. the prosecution has failed to satisfy the onus of proof which lies
 Sabaruddin bin Non v Public Prosecutor: reference was made to upon it.
Underhill’s treatise on The Law of Criminal Evidence (5th edn, vol 1 at p34) o This judgment may be summarised as follows:
where ‘reasonable doubt’ was stated as follow;  (1) If you are satisfied beyond reasonable doubt as to
o The doubt to be reasonable must be one that such an honest, the accused’s guilt, convict.
sensible and fair-minded man might, entertain with  (2) If you accept or believe the accused’s explanation,
conscientious desire to ascertain the truth. acquit.
o An honestly entertained doubt of guilt is a reasonable doubt.  (3) If you do not accept or believe the accused’s
o A vague conjecture or an inference of the possibility of the explanation, do not convict but consider:
innocence of the accused is not a reasonable doubt.  (a) if you do not accept or believe accused’s
o A reasonable doubt is one which arises from consideration of all explanation and that explanation does not
the evidence in a fair and reasonable way. raise in our mind reasonable doubt as to his
o There must be a candid consideration of all the evidence and if guilt, convict.
after this candid consideration is had by the jurors, there  (b) if you do not accept or believe the
remains in their minds a conviction of the guilt of then accused, accused’s explanation but nevertheless it
then there is no room for a reasonable doubt. raises in your mind a reasonable doubt as to
his guilt, acquit.
Convict the accused

 The court should never approach a criminal case on the basis of deciding
which of two conflicting stories it should believe or which version is more
likely to be true or untrue
Acquit the accused

 Mohammad Radhi bin Yaakub v Public Prosecutor:

o The accused is not required to prove his innocence beyond
reasonable doubt.
o The court may not be convinced of the truth of the defence story
or version.
o Raising a reasonable doubt as to the guilt of the accused will
suffice.
 It is not wrong for the court to be convinced that the defence version is
true, in which case the court must order an acquittal.
 In appropriate cases, it is also not wrong for the court to conclude that
the defence story is false or not convincing, but in that instance, the court
must no convict until it asks a further question that even if the court does
not accept or believe the defence explanation,
o Does it nevertheless raise a reasonable doubt as to his guilt
 Ali Tan Bin Abdullah v PP:
o Mere denial or presenting a bare story of innocence cannot n
circumstances amount to reasonable doubt.