DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA ...

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56 quash the conviction and will do so if it appears there has been a miscarriage of justice. (5) What is an ‘extreme situation’ must depend on the facts of each case. The authorities appear to envisage a case where there has been a flagrant or gross incompetence on the part of counsel as to deprive an accused of a fair trial.” [114] In dismissing the appeal and affirming the conviction and sentence on the appellant in the Shamim Reza’s case, the facts were highlighted. The evidence revealed that no other person other than the appellant was in the room with the deceased at the material time. The room was locked from within and PW10 had to look for a spare key to open the room. And when PW10 entered the room, she saw the appellant and the deceased there. The Federal Court held that the possibility of a third person entering the room was too far-fetched. [115] Before us, it was argued that the appellant here was deprived of a fair hearing because of the incompetence of counsel at the High Court level. Factually speaking, the circumstantial evidence alluded to earlier in this judgment linked the appellant to the offence of committing armed robbery and discharging a firearm in the course of that robbery. The strong circumstantial evidence pointed to the guilt of the appellant. The presence of the appellant at the goldsmith’s shop was linked to the bullet slug that was retrieved from the left shoulder of SP10 and that bullet slug came from the Styer pistol (exhibit “P23”) that was in the possession of the appellant. Even the bullet casing that was recovered at the goldsmith’s shop came
57 from the same Styer pistol (exhibit “P23”). To compound the matter further, the recovery of eight (8) gold chains in the front right pocket of the appellant’s trousers mixed with glass splinters sealed the fate of the appellant. The possibility that the appellant was not at the goldsmith’s shop must be construed as too “far-fetched” (to borrow the words of Gopal Sri Ram FCJ in the Shamim Reza’s case). Consequently, the fact that the learned JC held that no alibi notice was given within the prescribed time to the Public Prosecutor and had excluded the evidence connected with alibi defence has not occasioned a miscarriage of justice. In our judgment, there was no flagrant incompetence on the part of the defence counsel who conducted the defence before the learned JC. [116] It must be borne in mind that defence counsel having conduct of the case before the learned JC when confronted by the learned JC as to whether any notice of the alibi defence was forwarded to the Public Prosecutor replied that he did not do so for want of time. This response showed that defence counsel knew the law and he cannot be said to be incompetent or “flagrantly incompetent” (to borrow the words of Gopal Sri Ram FCJ in the Shamim Reza’s case). The learned JC convicted the appellant not because of the incompetence of defence counsel but rather because of the overwhelming circumstantial evidence adduced by the prosecution.
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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 and 50: 49 ini telahpun disangkal seawal ya
Page 51 and 52: 51 findings of fact arrived at by t
Page 53 and 54: Rebuttal evidence 53 [108] The appe
Page 55: 55 legal basis for the reception of
Page 59 and 60: Counsel 59 (1) For the Appellant Ac
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