rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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18 this appeal is safe and should be upheld as there is overwhelming evidence against the appellant and that a reasonable tribunal properly appraised of the available evidence and properly directed itself in accordance with the decision of the Federal Court in Tunde Apatira & Ors v Public Prosecutor [2001] 1 MLJ 259 would convict the appellant for trafficking in the dangerous drugs as per the charge. [46] It seems to us that the learned deputy public prosecutor is imploring us to invoke and apply vigorously the proviso to section 60(1) of the Courts of Judicature Act 1964 which enacts as follows: “Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.” [47] The full bench of the Federal Court in Tunde Apatira’s case (supra), at page 266 had this to say: “So it comes to this. As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection. Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied, that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction. The decision of this court in Alcontara al/ Ambross Anthony v PP [1996] 1 MLJ 209 exemplifies the general rule, while that in Khoo Hi Chiang v PP [1994] 1 MLJ 265 illustrates the exception.” [48] The Federal Court in Tunde Apatira (supra) clearly said that the proviso to section 60(1) of the Courts of Judicature Act 1964 is only applicable to those cases which are to be considered “exceptional”. The
19 burden is always on the prosecution to show that the evidence is “overwhelming”. Here, the learned High Court Judge at the prima facie stage was satisfied that the appellant was in possession of the cannabis weighing 4,089 grammes. That, in our judgment, is indicative of the overwhelming evidence adduced by the prosecution and it would trigger the proviso in favour of the prosecution. Since there is no substantial miscarriage of justice, the conviction stays and it is safe to convict the appellant. [49] In regard to grounds eight, nine, ten and eleven of the Petition of Appeal that concerned the averments that the learned High Court Judge failed to adequately consider the appellant’s defence, we have this to say. A perusal of the written grounds of judgment of his Lordship showed that the defence of the appellant was considered and analysed as seen at pages 18 to 23 of the appeal record. Having considered the defence, his Lordship was of the opinion that the defence raised by the appellant failed to create a reasonable doubt in the prosecution’s case. [50] It must be emphasised that the learned High Court Judge did not invoke an adverse inference against the appellant for not calling his wife as a witness. His Lordship merely stated that the appellant’s evidence was weaker without the support of his wife’s testimony. And this was criticised by learned defence counsel as a misdirection in law and that the appellant
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 [3] The appellant elected to give
Page 5 and 6: 5 [7] SP4 succeeded in apprehending
Page 7 and 8: 7 [16] When the appellant was about
Page 9 and 10: 9 is not concerned as to the owners
Page 11 and 12: 11 was sanctioned by the Federal Co
Page 13 and 14: 13 [30] Likewise SP5 also testified
Page 15 and 16: 15 [36] Here, the learned High Cour
Page 17: 17 [42] We will now reproduce the d
Page 21 and 22: 21 “Bertindak atas maklumat dadah
Page 23: Cases referred to in this judgment:

rayuan jenayah no: a-05-120-2009 antara mohd kamal bin osman

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