DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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these assumptions are mere speculations and they cannot be made by us.
We must act on the evidence led before the learned JC.
[81] Learned defence counsel invited us to make an assumption that
the prosecution had been alerted to the defence of alibi and were
conscious of it. We were also invited to make an assumption that the
prosecution knew about the defence of alibi from the appellant when he
was in police custody and that explained the conduct of the learned deputy
when SP4 was asked whether the alibi notice under section 402A of the
CPC was received.
[82] Be that as it may, during the Court session on 25.5.2010 before
the learned JC and when the appellant was giving his evidence under
cross-examination, the learned JC asked before the start of the afternoon
session at 2.30 p.m. the following pertinent question in regard to the alibi
notice under section 402A of the CPC as reflected at page 224 of the
appeal record at Jilid 1:
“Soalan Mahkamah
Ada atau tidak notis alibi di bawah Seksyen 402A Kanun Prosidur
Jenayah dikemukakan daripada (sic) pihak pendakwaan
J: Kami tidak menghantar notis alibi kepada pihak Pendakwa Raya
atas alasan kesuntukan masa.
Kami akan memanggil Uda.”
[83] Thus, there was no alibi notice as required under section 402A of
the CPC, yet SD3 was called and he gave his evidence. Midway through,
the learned deputy public prosecutor objected and the learned JC took note