SP5309 UNDANG-UNDANG ACARA JENAYAH

Semester 2 - 2010-11 DSLP 2

TUGASAN ACARA JENAYAH

HOW DO YOU REASONABLY EVALUATE THE EVIDENCE PRESENTED DURING A TRIAL UNTIL YOU REACH A DECISION OF EITHER A CONVICTION OR AN ACQUITTAL OF THE ACCUSED AT ANY STAGE OF A PROCEEDING IN A SYARIAH COURT?

STUDENTS NAME: Dk Hjh Hana Molina binti Pg Hj Mohammad (09d0006)

LECTURERS NAME: Haji Azim Azman

DATE: 26 MARCH 2011

INTRODUCTION Before making a decision to prosecute, a Syarie Prosecutor must evaluate and review all the evidence submitted by the Religious Enforcement Officers because to reach a prima facie case is not as easy as it may seem. Evidence can only be admitted after going through a process of filtration and evaluation. In addition, in deciding whether there is a reasonable prospect to get a conviction against the accused, the Syarie Prosecutor must analyze the strength of a case, which is brought to the Syariah Court. The matters, which can be considered, are the attendance of competent witnesses and their credibility and the effects of their evidence to the Syariah judge, the admissibility of the accuseds confession and the other evidence. The Syarie Prosecutor must also anticipate any defences, which could be raised or expected. In evaluating the evidence presented during a Syariah court trial to reach a decision of either a conviction or an acquittal (of an accused), reasonable consideration on the following matters should therefore be made: 1. Admissibility of Evidence Consideration must be made on whether the evidence presented during a trial can be admitted or whether there are any reasons the evidence could not be admitted based on the principles of admissibility of evidence according to the Syariah Courts Evidence Order 2001. 2. Corroboration1 Consideration should also be made on whether there are other evidence such as qarinah2, which can corroborate the confessions evidence (ikrar) of the accused persons. Qarinah is fully defined from section 7 to section 19 of the Syariah Courts Evidence Order 2001. For example, in the cases of illicit intercourse, the fact that there was a child
1

Corroboration means the actual supporting evidence, which is required before certain testimony can be relied upon - A Practical Handbook on Criminal Prosecution in the Subordinate Courts Second Edition by Teo Say Eng Malayan Law Journal Kuala Lumpur 2001 page 96 2 Qarinah is a fact connected with the other in any of the ways referred to in Hukum Syara or in the provisions of this Order Section 7 of the Syariah Courts Evidence Order 2001.

born from a marriage which is not valid according to Hukum Syara amounts to evidence of qarinah which strongly corroborates the evidence of ikrar made by both the accused persons who confessed the offence of illicit intercourse. In the Brunei case of Pendakwa Jenayah Lwn Dk Soryani Bte Pg Besar Dan Mahhamad Jin Bin Roseta, both the accused persons were charged for committing the offence of illicit intercourse3 in December 1993 under section 178(4) Religious Council & Kadis Courts Chapter 77. Both the accused persons were convicted by the court based on two material evidence: a) b) The iqrar of both the accused persons (pleaded guilty). The female accused gave birth to a child while both the accused

persons were not husband and wife or they were both not yet married to each other at the relevant time. The fact that the female accused gave birth to the illegitimate child while the male and female were not married yet amounts to qarinah evidence, which corroborates their ikrar. Also, in cases such as illicit intercourse (persetubuhan haram), if confession evidence of a co-accused is tendered, it is as a matter of prudence to produce other supporting evidence. In common law, a judge may convict an accused without corroboration but this rarely happens. This is because it is not reasonable for a judge to convict an accused in a criminal case on uncorroborated evidence. This requirement of corroboration had been stipulated in the Syariah Courts Evidence Order 2001, which is a mandatory requirement. Under section 22 of the Syariah Courts Evidence Order 2001, an ikrar is a final proof on the person making the ikrar and is not a proof on any other person including the same accused person in the same charge with the person making the ikrar. The explanation under this section provides that ikrar of an accomplice is admissible as evidence but it shall not become a basis for conviction of his
3

illicit intercourse means sexual intercourse not amounting to rape between any male and any female who is not his wife or whom he is forbidden by Muslim law to marry section 2 of the Religious Council and Kadis Court Chapter 77 Amendment 1984.

accomplice unless it is corroborated by other evidence. 3. Confessions (ikrar) Under section 21 (1) of the Syariah Courts Evidence Order 2001, an ikrar made by a person is binding on the person making the ikrar. When the ikrar is admitted by the Court it shall not be withdrawn except in a case of the offence of zina punishable on conviction by hadd4 penalty. If the case relied on a ikrar (confession) to be admitted as an evidence under section 21 (1), the Court must consider whether the conditions of the ikrar must be complied with, such as the number of witnesses required under section 21 (2) of the Syariah Courts Evidence Order 2001 which provides that an ikrar made outside Court is only admissible if made before 2 witnesses who are adil The court should also consider whether there are any reasons that the ikrar are doubtful or is not reliable based on the age, intellect and understanding of the maker of the ikrar. Therefore, the court must also consider whether the conditions provided under section 23 (1) of the Syariah Courts Evidence Order 2001 which provides that an ikrar shall be made by a person who is akil and baligh had been complied with. The court must also consider whether the ikrar can be proved beyond reasonable doubt that it was made voluntarily, free from any violence, inducement, threat or oppression. Section 23 (5) of the Syariah Courts Evidence Order 2001 provides that an ikrar shall be made absolutely and voluntarily without force and any imputation. The explanation under this section states that an ikrar made by threat, inducement or promise is inadmissible. Normally, after conducting an investigation on a suspect under section 116 of the Criminal Procedure Code, the Religious Enforcement Officers (Pihak
4

hadd means any criminal punishment or penalty as ordained by al-Quran or Sunnah Rasullulah Sallallahu Alaihi Wassalam Section 3 (1) of the Syariah Courts Evidence Order 2001.

Penguatkuasa Agama PKA) can explain the charges he might face as provided under section 117 of the Criminal Procedure Code (CPC). His written statements would be recorded according to section 117 of the CPC and if his written statements contain a confession of guilt, this confession of guilt would be substantive evidence, which can be tendered by the prosecution to assist in getting a conviction against him before the Syariah Court. However, the confessions of the accused as evidence can only be admissible if the relevant conditions have been satisfied. Section 117 (2) of the CPC provides that: The Court shall admit under subsection (1) a statement made by an accused, only if the prosecution satisfies the court that the statement was voluntary, that is to say that it was not obtained by violence, inducement, threat or oppression by a person in authority. Therefore, based on these 2 provisions namely section 21 (1) of the Syariah Courts Evidence Order 2001 and section 117 (1) of the CPC, the accuseds confession can be admitted as evidence. But as explained above, this is subject to the prosecution being able to satisfy to the court beyond reasonable doubt that the written statement of the accused containing his confession was taken voluntarily and that it was not obtained by violence, inducement, threat or oppression by a person in authority. When the voluntariness of a confession (iqrar) is challenged by the defence or when the court is of the opinion that the statements were made involuntarily, a voir dire (trial within a trial) would be conducted. If the defence does not challenge the voluntariness and the court has no doubt with regards to it, a voir dire (trial within a trial) is not required. A judges duty is not only to decide whether the accuseds statement containing the confession (ikrar) was made voluntarily or not. A judge must also analyze and evaluate all the evidence presented before him whether the evidence is the truth or not in the view of the relevant judge. This matter was explained by Sarkar in Evidence, page 415 who stated, Even if the confession is held to be voluntary, it must also be establish that it is true and for this

purpose, it would be necessary to examine the confession and compare it with the rest of the prosecution evidence and probabilities of the case. In the same book by Sarkar on Evidence page 416, which stated, To make a confession relevant under the section it must be shown(1) that it was made and that by an accused person and (2) that it is voluntary In order to make it a foundation for conviction, it must be further shown(3) that it is true. To make an admission reach the level of a confession in order to make it relevant under section 24 of the Evidence Act Chapter 108, several criteria have to be satisfied namely: 1. It is made against the accused person 2. It is made voluntarily 3. If 1 and 2 are satisfied, then the confession can be made a basis for conviction if it can be proved that the confession is the truth. As such, the Syariah court must analyze the confession based on all the existing evidence, whether the confession, which was made voluntarily, was reasonably the truth or otherwise. According to the laws, an accused can be convicted based on his confession he made. Judge Biskaunt Dilhorne in Osman & Anor lwn PP (1967) 1 MLJ 137, in page 140 inter alia stated; In our view, the law as to the admissibility of retracted confessions in evidence is clear, and put shortly, it is that an accused person can be convicted on his own confession even when it is retracted, if the court is satisfied of its truth. However in PP lwn Lai Pong Yuen & Ors (1968) 1 MLJ 12, Ismail Khan J held Unlike the confession of a co-accused, a confession by an accused can be used against himself, and if believed could lead to a conviction. But the rule of prudence requires that there should be an independent corroboration. The question for the court is to decide whether the confession is the truth or not. It had been shown from the cases cited above that the truth must be

established by the existence of other independent evidence, which corroborated the incriminating confession from the admission of the accused. According to the Brunei case of Sulastri bin Haji Basir & Abd. Latif bin Jumat, the Court had ruled that the confession ( ikrar) made by the female accused (Sulastri bin Haji Basir) was made voluntarily even though she retracted it. The only thing left for the Learned Subordinate Court Judge to decide is whether it was the truth or not. It is clear from the confession made by the female accused that there was an incriminating statement from her confession. Her confession is no doubt a confession, which is incriminating on the offence charged against her. The next step is to make sure whether the confession, which is incriminating is the truth or not. The truth can be confirmed by the existence of an independent evidence to corroborate the confession. It is clear from this case, the evidence found from the circumstances of the offence whereby both the male and female accused were found in close proximity, which create a doubt committing the khalwat. The evidence showed that the female accused admitted that they ahd sexual intercourse on the 1st May 2001 which was before they were both caught by the Religious Enforcement Officers at about 3.50 a.m. It is therefore clear that the confession made is a confession with basis and the truth and it is corroborated by the circumstances in which they were both found. Both of them were found in a secluded place being close to each other and thereby created a doubt that they were committing the offence of khalwat. In Sarkar on Evidence, this point had been touched in page 466 whereby several rules have been identified to explain the position of a retracted confession from the cases which have been decided: 1. A confession or admission cannot be considered as involuntary or recorded not according to the law just because of reasons that it had been retracted during a trial. 2. a) The effect of a retracted confession on the person making the confession or admission can be a basis for his conviction if it is believed to be the truth and had been proved to be made voluntarily.

b)

However, there are preferable views that a retracted confession

must be treated with full suspicion and as a regulatory practice and prudence, it is not safe to convict solely based on a retracted confession without the existence of independent corroborating evidence. In conclusion, a confession, which is retracted, can be used as evidence against the person making it, if was made voluntarily. Based on the laws, it is valid to convict a person based on his retracted confession. However, normally, the court requires corroboration. As such, if a retracted confession was found to be made voluntarily and it is supported by corroboration, the confession can therefore be used as a basis for a conviction. If the Court is satisfied from the existing evidence that the retracted confession was made voluntarily, the Court is required to examine whether the evidence or the statement is the truth. After evaluating the existing evidence, if the Court found that the retracted confession is the truth, then the inculpatory part of the admission can become the basis for the conviction. The court should give attention on whether there is other corroborating evidence for the conviction of the female accused to support her retracted confession. Here, the male accused (Abd. Latif bin Jumat) was not convicted for illicit intercourse because he did not admit in his statement of the offence and therefore, there are no other evidence supporting the offence. However, the female accused was convicted for illicit intercourse because her own confession in her statement corroborates the allegation against her. Her statement or confession is only binding on herself and does not bind other people as clearly provided for under section 22 of the Syariah Courts Evidence Order 2001. 4. Credibility of a witness During a trial, the court must determine the truthfulness and accuracy of the evidence given by a witness. The court must decide whether a witness is telling the truth and was accurate, or instead, testified falsely or was mistaken.

Evaluation should be therefore be made on the witnesses on their reliability, dependability, credibility, willingness to testify and the importance of their evidence. Consideration must also be made on whether the witness exaggerates in giving his evidence or whether his evidence is full of discrepancies or whether he is an absent-minded or forgetful person in giving evidence. Also, it must be considered whether an eye witness have an opportunity to see or hear the events about which he or she testified or whether he have the ability to recall those events accurately. In assessing and evaluating the evidence of eyewitnesses, the 2 important considerations are: 1. Whether in the circumstances of the case it was possible for the eyewitnesses to be present at the scene or their explanation for their presence at the scene can be accepted; 2. Whether there is anything inherently improbable or unreliable in their evidence.5 Also, it is important to see whether the witness have turned hostile or bias or the witness is an adverse party which would affect the truthfulness of their evidence. It must also be considered whether the witness suffers from any physical or mental defects, which could affect their credibility. 5. Inconsistencies Consideration should be made on whether there are inconsistencies in the evidence given among the witnesses. If there are significant inconsistencies related to the material facts, one must consider whether those inconsistencies reached to an extent, which can weaken the prosecutions case or raised a doubt to show that the evidence is not true or was fabricated (made up) and as such detriment the prosecutions case. Similarly, in considering the evidence given by the defence, it must be considered whether the defence case is flawed by inconsistencies or
5

See Maliks Criminal Trial 2nd edition, Law Publishers (India) Pvt Ltd.

contradictions so material that it had failed to rebut, on the balance of probabilities, the prosecutions case or failed to create any reasonable doubt in the prosecutions case. In the Brunei case of Pendakwa Syarie lwn Yahaya bin Haji Abu Bakar (Tertuduh Pertama) Dan Marliana binti Mardi (Tertuduh Kedua)6, the male defendant (Yahaya bin Haji Abu Bakar) was charged under section 177(1) and the female defendant (Marliana binti Mardi) was charged under section 177(2) Religious Council and Kadis Court Chapter 77 Amendment 1984 for the offences of khalwat. In this case, the Prosecution laid down the facts for the prosecution and subsequently called 4 witnesses to give evidence in court. The Prosecution also tendered 9 exhibits for the case. The court found that the defence could not dispute or challenge the facts in relation to the place, date and time that they were found. The court was of the opinion that there was no doubt in relation to the said matters and there were no inconsistencies in the evidence given by the prosecution witnesses. The Court accepted the evidence by oath (yamin)7, which were given by all the prosecution witnesses who were all from the Religious Enforcement who took part in the search which strengthen the prosecutions case. This is in compliance with section 101 (5) of the Syariah Evidence Order 2001 which provides that in a criminal case, evidence shall be give by muddaii8 and muddaa alaih9, unless muddaa alaih pleads guilty. The exhibits further strengthened the evidence given by prosecution witnesses, which had been, tendered by the prosecution and labeled during the trial. All the exhibits corroborated the evidence given by the prosecution witnesses. Whereas with regards to the defence of both the defendants, the Court found
6

MRHS/J/BM: 29/2007 & MRHS/J/BM: 30/2007, Mahkamah Rendah Syariah Daerah Brunei dan Muara 7 yamin means statement made solemnly regarding matters that would occur or otherwise occur or confirming it by pronouncing Allah or one of Allahs attributes Section 3 (1) of the Syariah Courts Evidence Order 2001. 8 muddaii means a person who prosecutes or claims a right Section 3 (1) of the Syariah Courts Evidence Order 2001. 9 muddaa alaih means a person who is prosecuted or claimed in respect of a right Section 3 (1) of the Syariah Courts Evidence Order 2001.

that both of them failed to prove what both of them had stated in their defences. Their defence were inconsistent with the evidence given by the prosecution witnesses who had gave evidence by oath ( yamin) and were not inconsistent with each other. The Court ruled that after assessing all the evidence during the trial at the defence stage, the Court found that both the defendants have failed to create any reasonable doubt in the prosecutions case. The Court held that the prosecution had proved its case beyond reasonable doubt. Therefore, based on section 70 (10) of the Religious Council and Kadis Court Chapter 77 Amendment 1984, the Court found both the male and female defendant guilty as charged. 6. Competent and Compellability It must also be considered whether the main witnesses are able to attend court and whether they are competent enough to give evidence including the witnesses who are outside the country. With regards to child witnesses, consideration must be made on whether their evidence can be believed. There is no age restriction on children giving evidence. The test is that a child who understands questions and can give a rational answer is competent to testify. Under section 133A (1) of the Evidence Act, 133A, where, in any proceedings against any person for any offence, any child called as a witness does not in the opinion of the court understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. Section 133A (2) of the Evidence Act, 133A, where evidence admitted by virtue of this section is given on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless that evidence is corroborated by some other material evidence in support thereof implicating him. In conclusion, the court can convict an accused from evidence given by a child witness only if the evidence is corroborate by some other material

evidence implicating the accused. 7. Identification If a case involves the issue of identification, considerations should be made on whether the witness did actually identify the accused during the relevant time. Hence, if no identification parade had been conducted when the witness does not know the accused before the occurrence of the incident, the evidence of the witness should not be considered. However, an identification parade is not necessary if the accused was caught red handed while committing an offence or the name of the accused was stated in the police report (see case of Anwar & Anor v State (1921) AIR 50A where the court laid down conditions required for acceptance of an identification parade). For example in a khalwat case, if the accused person was found to have escaped the scene of crime, the Religious Enforcement Officers must be able to clearly identify him when he was caught red handed committing the offence for the judge to able to consider their evidence. 8. Chain of Evidence: Exhibits The court must also consider whether there was any break in the chain of evidence in the case. If the Prosecution wishes to introduce evidence of exhibits seized at a crime scene, he must show an unbroken chain of custody of the exhibit beginning with the officer who seized the exhibit evidence, through the other officer who transported the evidence, through the officer who logged the evidence into storage and ending with the officers who checked it out of evidence and are presenting it in court. If there is a break in this chain, the evidence cannot be used. Hence, the handling of the evidence of exhibits seized must be proper and according to the standard procedures practiced in criminal investigation. Therefore to consider whether there was any break in the chain of evidence, the consideration must be made on whether the exhibits seized have been properly marked by the raiding officer or the investigating officer. There must also be a proper account of the movement of exhibits from the time of seizure to the time when they are handed to the investigating officer or when they are

produced in court. The court must also consider whether the exhibits have been tampered with by the third parties and that the exhibits kept in the exhibits store are recorded in the exhibit register. Whether there was any delay by the arresting officer in making the police report and handing over the exhibits to the investigating officer and whether there was any delay by the investigating officer in submitting the exhibits to the chemist for analysis should also be considered. CONCLUSION A successful prosecution of criminal cases in a Syariah court depends on the evidence adduced in court and the skills of a Syarie Prosecutor conducting the prosecution in Court. The strength of the evidence adduced normally depends on the investigation conducted by the Religious Enforcement Officers and police officers. Therefore, strong sufficient evidence in a case can only be obtained through a complete structured and systematic investigation. It is thereby important for a Syarie Prosecutor to consider all the factors stated above in assessing all the evidence of a particular case before they consider prosecuting the accused in order to successfully prove the case beyond reasonable doubt and thereby to get a conviction against an accused by the Court. References 1. Polisi & Standar Pendakwaan Bahagian Pendakwaan Syarie, Unit Perundangan Islam, Kementerian Hal Ehwal Ugama, Negara Brunei Darussalam 2. A Practical Handbook on Criminal Prosecution in the Subordinate Courts Second Edition by Teo Say Eng Malayan Law Journal Kuala Lumpur 2001 3. Sarkar's Law of Evidence (In 2 Volumes) 17th Edition, 2010 4. Maliks Criminal Trial 2nd ed, Law Publishers (India) Pvt Ltd. 5. Cirminal Evidence: Principles and Cases, By Thomas J. Gardner, Terry M. Anderson, Seventh Edition 2010 Statutes 1. Syariah Courts Evidence Order 2001 Warta Kerajaan Bahagian II, diterbitkan:

12hb Mei, 2001. 2. Evidence Act Chapter 108 3. Criminal Procedure Code, Chapter 7 4. Religious Council and Kadis Court Chapter 77 Amendment 1984 Case Materials (Brunei and Malaysia) 1. Pendakwa Jenayah Lwn Dk Soryani Bte Pg Besar Dan Mahhamad Jin Bin Roseta 2. Osman & Anor lwn PP (1967) 1 MLJ 137 3. PP lwn Lai Pong Yuen & Ors (1968) 1 MLJ 12 4. Pendakwa Jenayah Lwn Sulastri bin Haji Basir & Abd. Latif bin Jumat 5. Pendakwa Syarie lwn Yahaya bin Haji Abu Bakar (Tertuduh Pertama) Dan Marliana binti Mardi (Tertuduh Kedua) MRHS/J/BM: 29/2007 & MRHS/J/BM: 30/2007, Mahkamah Rendah Syariah Daerah Brunei dan Muara