DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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50 sebarang teknik untuk seseorang itu boleh melihat apabila mata diikat. Menurut SD2 lagi semasa melihat mata OKT diikat dengan tuala, beliau tidak nampak SP15 atau SP16 berada bersama OKT. SD2 juga menyangkal cadangan OKT bahawa SD2 yang membuka ikatan kain tuala pada mata OKT. Berdasarkan keterangan-keterangan di atas, Mahkamah tidak dapat mempercayai keterangan OKT bahawa SP15 telah memasukkan barang kemas ke dalam poket seluar OKT.” [101] Faced with a situation of this nature, we applied, just like the learned JC did, the case of Mirza Murtala v. PP [2010] 4 CLJ 150, a decision of this Court. There, Azhar Ma’ah JCA had this to say at pages 162 to 163 of the report: “Hence, we are of the view that what was put to the witness SP6 was just a proposition unsupported by evidence and successfully refuted by the prosecution. (19) The other aspect of the defence story that needs to be addressed is the suggestion by the 1st accused that his arrest together with the 2nd accused and the finding of the incriminating drugs was a frame up. Having been put in a situation where the court was presented with two divergent versions of the episode leading to the arrest of the two accused and recovery of the offending drugs in question, the trial judge had apparently adopted the principle laid down by Thomson CJ in Public Prosecutor v. Mohamed Ali [1962] 28 MLJ 257. In that case the learned Chief Justice said: ‘When a police witness says something that is not inherently improbable his evidence must be in the first instance be accepted. If his evidence is contradicted by other evidence or is shaken by crossexamination then it becomes the business of the Magistrate to decide whether or not it should be accepted. In the absence of contradiction, however, and in the absence of any element of inherent probability the evidence of any witness, whether police witness or not, who gives evidence on affirmation, should normally be accepted’.” [102] The learned JC disbelieved the evidence of the appellant. His Lordship had audio-visual advantage and made specific findings of fact. There are no substantial and compelling reasons for disagreeing with the
51 findings of fact arrived at by the learned JC (Sheo Swarup and others v. King Emperor [1934] AIR 227, PC). Other miscellaneous issues [103] There were shortcomings that surfaced in this appeal and they are insignificant and they may be stated as follows: (a) there was an unknown male DNA recovered from the dashboard of the GEN-2 motorcar as reflected in the chemist report at page 116 of the appeal record at Jilid 2 and the police did not take steps to investigate into the origin of this unknown male DNA; (b) the outcome of the identification parade was negative; (c) the swabs taken from the appellant and the deceased were negative; and (d) the CCTV was not functioning. [104] But these shortcomings cannot, in our judgment, exculpate the appellant. These shortcomings paled in comparison to the ovewhelming circumstantial evidence alluded to earlier which pointed to the guilt of the appellant. At this juncture, it is ideal to refer to section 114 of the Evidence Act 1950 which enacts as follows: “Court may presume existence of certain fact 114. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case.”
Page 1 and 2: 1 DALAM MAHKAMAH RAYUAN MALAYSIA (B
Page 3 and 4: 3 iaitu sepucuk pistol telah menyeb
Page 5 and 6: 5 10.10.2007. Exhibit “P9” was
Page 7 and 8: 7 robbery and he circulated that in
Page 9 and 10: 9 downwards. When the driver of the
Page 11 and 12: 11 pistol which was located underne
Page 13 and 14: 13 (e) one red and blue coloured ba
Page 15 and 16: 15 motorcar was stopped, SP15 told
Page 17 and 18: 17 [32] The appellant testified tha
Page 19 and 20: 19 said, “Haizat, tolong aku ni p
Page 21 and 22: 21 S : Kamu tidak pernah berjumpa O
Page 23 and 24: 23 irresistible inference that the
Page 25 and 26: 25 advice of Suffian LP in Jayarama
Page 27 and 28: 27 driver’s seat of the Proton GE
Page 29 and 30: 29 CPC for the government chemist t
Page 31 and 32: 31 GEN-2 motorcar had just been use
Page 33 and 34: 33 “Finding dalam P6 ini adalah d
Page 35 and 36: 35 Pilah-Seremban road some 15 kilo
Page 37 and 38: 37 [66] Learned defence counsel was
Page 39 and 40: 39 [74] The strength of the prosecu
Page 41 and 42: 41 these assumptions are mere specu
Page 43 and 44: 43 [86] It was also submitted by le
Page 45 and 46: 45 [91] So, at least ten (10) days
Page 47 and 48: 47 [94] The sum total of it all wou
Page 49: 49 ini telahpun disangkal seawal ya
Page 53 and 54: Rebuttal evidence 53 [108] The appe
Page 55 and 56: 55 legal basis for the reception of
Page 57 and 58: 57 from the same Styer pistol (exhi
Page 59 and 60: Counsel 59 (1) For the Appellant Ac

DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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