THE TRIAL JUDGE HAD ERRED IN LAW FOR THE FINDING THAT THE PROSECUTION HAD ESTABLISHED A PRIMA

FACIE CASE. First of all, we need to know what is a prima facie. Prima facie can be defined as the term generally used to describe two things such as the presentation of sufficient evidence by a civil claimant to support the legal claim (a prima facie case)1. It is for the judge that will deliberate and weigh all the evidences brought before him to determine whether the prima facie case had been established. Section 173 (f) of the Criminal Penal Code states that 173. Procedure in summary trials The following procedure shall be observed by magistrates in summary trials: (f) (i) When the case for the prosecution is concluded the Court shall consider whether the prosecution has made out a prima facie case against the accused. (ii) If the Court finds that the prosecution has not made out a prima facie case against the accused, the Court shall record an order of acquittal To determine whether the case is a prima facie case, the judge presiding in this case must ask himself the question if I decide to call upon the accused to enter his defence and he elects remain silent, am I prepared to convict him on the totality of the evidence in the prosecution case? In other words, is the evidence brought by the prosecution enough to warrant a conviction if the defence were to remain silent? If the answer is in negative, an acquittal is in order. In making it short, what is the prima facie in this case? In the case of Public Prosecutor v Mohd Ridzwan bin Md Borhan2, in order to establish a prima facie case of the rape, the burden is on the prosecution to prove the following ingredients: 1) Sexual intercourse 2) Penetration; and 3) Without consent These ingredients also had been used in the case Public Prosecutor v Kamarulariffin bin Abdullah3, the ingredients required to be proved for the offence under section 376 of the Penal Code have been correctly summarised by the Trial Judge as follows: 1) There is sexual intercourse between the Accused and the victim, SP7 2) There is penetration by the accused into SP7s private part 3) The sexual intercourse occurred against SP7s will and without her consent

In order to establish there is a prima facie case, these ingredients should be fulfilled. In this case, she was claiming that Damien had sexual intercourse with her; Im going to deal with this later. Let me highlight that to this court, which in the fact of the case, there is no sexual intercourse that occurred between Zander and Sonia. For there is no proof that Zander had done the sexual intercourse, on what basis he had fulfilled this ingredient? As to prove rape, sexual intercourse should be the essential part of
1 2

http://legal-dictionary.thefreedictionary.com/prima+facie retrieved on < 2013, May 15th> (2004) 5 MLJ 300 3 (2009) MLJU 765

it, however, the facts of the case do not support any contention that suggesting he had done sexual intercourse with her. I shall then tackle the ingredients of the penetration. In the case of Nasrul Annuar bin Abd Samad v Public Prosecutor4, the accused was charged with an offence of rape of the victim aged 14years and 3 months old at the time if the offence. He was found guilty and sentenced. The accused appealed. He claimed that the penetration had not been proved by the prosecution as whatever the victim had said in her examination-in-chief on this issue had been demolished in her cross-examination. The victim testified that at the time of the alleged rape, she did not see anything that happened to her from her stomach downwards and that she only had presumed that the penis of the accused had penetrated into her private part. It was held in allowing the appeal and quashing the conviction and sentence, that there was no basis for the presumption of penetration made by victim. In view of the vague evidence of the victim as shown in her cross-examination which had not been effectively explained in her re-examination, it was unsafe to rely on her evidence. Therefore, there was no clear evidence to show that the penis of the accused had penetrated into her private. The judge presiding is in view that the prosecution had failed to establish the element of penetration. In the upshot I allowed the appeal by the accused and quashed the conviction and sentence (Augustine Paul JCA) In this case, there is no clear evidence that Damien and Zander had penetrated their penises into Sonias vagina. Having to say Damien had inserted his private part to Sonias vagina; Sonia didnt testify that Damien had inserted his penis to her vagina. She was lying weakly on the bed, if we are lying down and there is a person on top of us, it is impossible for us to look down and having to say Damiens penis had inserted his penis to Sonias private part. Moreover, in Sonias testimony, she didnt say that Damien had inserted his penis to her vagina. In fact, there is no clear cut of action and evidence that support Zander had penetrated into Sonias vagina. If he didnt put inside and shove his penis into her vagina, why he must be charged under rape? The evidences and the circumstances of this case do not show that Zander really had the sexual intercourse with Sonia, if there is no sexual intercourse, how is it able for Zander to penetrate into Sonias vagina. To put Damien and Zander in a nutshell, is Sonia can confirm that Zander and Damiens penises had inserted to her private part? She never testifies and there is no proof that can prove both of them had done the penetrations to her sexual organ. The evidences had shown that Sonia had such tears that resulted from penetration of a blunt and hard object such as a male organ. But whose penis that penetrated into her vagina? Looking back to the facts of the case, there are other 12 male persons in the house that also had sexual intercourse with her. There is no certainty of which penis inserted to her vagina. In total, there are 15 penises in the house including Justin himself; each of the penises had the probability of penetration into her vagina. Meaning to say, even there is a penetration, is it confirm that my clients penis had inserted to the
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(2005) 1 MLJ 619

victims vagina? There are other 13 males in the house; the victim couldnt say that my clients had done the penetration. The prosecution had failed to prove that among the 15 male people in the house; only two of them i.e. my clients had penetrate? The others 13 males also carry a big probability in carry out the sexual intercourse and penetrate to her vagina. Sonia herself couldnt testify that our clients had inserted their penises to her vagina. Plus the prosecution do not prove that only my clients are in favour of doing the penetration. Citing the case of Public Prosecutor v Muhammad Nasir bin Shaharuddin & Anor 5 Where two or more persons are jointly charged pursuant to s 170 of the Criminal Procedure Code (FMS Cap 6) ('the CPC'), the prosecution need not show a common intention but must establish the guilt of each accused as a separate exercise, and each may be convicted independently. Conversely, in cases of common intention, the prosecution need only establish that one of the accused committed the act and that the others participated in it in furtherance of a common intention. So my contention is, the other males person also should be brought to the court and put them on the trial
(7)

Hence, there is no certainty that my clients had done the penetration to her vagina and the prosecution team failed to prove that my clients penises that insert to her vagina.

My next submission is on the ingredient of consent. In the case of Public Prosecutor v. Hassan Bin Shamsuddin6 To my mind, where there is no other evidence to the contrary to indicate the existence of consent of the complainant, then her words that she did not consent ought to be accepted by the Court and it is then up to the accused to prove on a balance of probabilities that the complainant had consented to the sexual intercourse. On the other hand, where the circumstances, as in this case, are such that the complainant had gone to the movies with the accused who by slow but sure persuasion managed to lure the complainant to a room in a public place such as a hotel, where the complainant shared the same room with the accused without any intention to leave the room or to dissociate herself from the companionship of the accused, her words alone that she did not consent should not be accepted as the whole truth, unless there is sufficient corroboration to the same effect. Consent is a mental element which by its very nature cannot be proved by direct evidence, and even if one breaks open the brain of another to look for consent, one can never succeed at all, for it is all too common to hear that the face and the person can be seen, but the mental element is not even remotely visible. Therefore, it is essential to look at the surrounding circumstances to arrive as nearly as possible at the true position in this case. As noted above, the circumstances of this case do not readily admit and concur with the mere statement of the complainant that she did not consent. On the contrary, her evidence has more than probably proved that she consented to the situation in which she was found and she cannot be said to be a victim of circumstances. 2004 5 MLJ 300 at 306
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(1994) 2 MLJ 576

(1981) 2 MLJ I

In this case, Sonia agreed to follow Zander after some persuasion and affection shown by him. Sonia also never tries to attempt to be apart from Zander. In the house also, she never tried to find an exit and escape. If she feels insecure of it, she will try to break and run away. She will not be there if she doesnt consent to. Discussing the case above, consent is a mental element, if she feels insecure, she will not follow him. Even through all the persuasion, she will not be going if her mind tells her not. In the end, she still was going with him. When there is consent in the first place, she will know what the circumstances of it.

In the case of Public Prosecutor v Mohd Ridzwan bin Md Borhan, In Seremban, both the accused and the complainant went together to a shopping complex in Senawang for food and were there until nightfall when they both returned on the motorcycle via the PLUS highway, taking the interchange at Alor Gajah, and then passing through Sungai Udang, Sungai Rambai, Tanjung Keling, Tanjung Bidara and Masjid Tanah. At about 8.40 of the same night, the accused brought the complainant to Umbai through a road in an oil palm plantation, where the accused told the complainant that the motorcycle was running out of petrol. After some discussion, the accused suggested that they spend the night in the shed until 4am the next day although the complainant counter proposed 2am. In the shed, the complainant sat down, and when the accused was lying down, the complainant followed, next to him, although she testified that she did not like the accused's face which was touching her cheek. However she did not attempt to run away from the shed nor slap the accused. 2004 5 MLJ 300 at 303 There was an opportunity for the complainant to escape when the accused was burning a rubbish dump in order to create smoke to dispel mosquitoes and other insects, but she did not do so. Her clothes were not torn. She lodged a police report as she had been with the accused for the night through the wee hours of the morning and was not at home during those hours. During those hours, the accused embraced and kissed the complainant, with whom he later had sexual intercourse, not once but twice, although the complainant alleged that she resisted and threatened to report to the police the accused and the victim had met up, after they socialised, the victim had agreed to accuseds invitation to Pantai Klebang Rembau, Kuala Pilah and Seremban on the same day. She also readily agreed and followed, by riding pillion on the accuseds motorcycle It was held that: Reverting back to the appeal before me, after anxiously considering the entire evidence adduced for the prosecution, I hold that the facts and circumstances are more consistent with the existence of consent on the part of the complainant. Although it is true that the grounds of decision of the trial judge are comparatively brief, especially on the question of consent, they are founded upon the evidence adduced before him. Hence, I am unable to see any misdirection or miscarriage of justice. Relying to this case and looking to the circumstances of the house, it is possible for Sonia to run away. It is a neighbourhood, when the neighbours sense that something bad is happening they will know. But why the neighbours do not appeared at all? That means there is a positive situation that happened

during the time. Taking the time considerations, it will be almost midnight when they arrived in the house. It is a terrace storey house; the houses are attached to each other. If she screams, the screams can be heard from the next house, as the taking down the time, it will be nearly midnight as they met around at 10.30 p.m. I would like to say that she is having a good time in the house; there is no scream to show her rejection of what is happening during the time.

Now lets me proceed with the next issue, In the case of PP v Hanif Basree bin Abdul Rahman7, in the Court of Appeal The judge was correct in acquitting the respondent at the close of the prosecutions case without calling for his defence when the prosecution failed to establish a prima facie case that, if unrebutted, would warrant a conviction. The presence of the unknown person, as reflected in the evidence adduced, clearly cast a doubt in this courts mind that the respondent was the one who caused the death of the deceased. This court would agree with the judge that no prima facie case had been made out and, hence, the respondent was entitled to an acquittal It was further supported in the Federal Court, Public Prosecutor v Hanif Basree bin Abdul Rahman8 [11] It must be noted that the evidence of the man with the foul body odour was introduced by the prosecution. Although in his submission the learned DPP attempted to argue that the accused's body could have given out such an odour after having sexual intercourse with the deceased and having worked hard to tie her hands and her legs, there was however not an iota of evidence whatsoever to support his contention. On the contrary SP28 did say that the accused did not have such a body odour. This statement by SP28, (who is the prosecution's witness) was not challenged by the prosecution. Neither was any attempt made by the prosecution to show any disagreement with this evidence of SP28 during examination. [12] From the evidence so far, we have the person with the foul body odour and the other person who was seen walking away while putting on his shirt. There is no proof that they were one and the same person. Unknown male 1 [13] The chemist found DNA of an unidentified male person from the deceased's vagina, swab from the deceased's rectum, semen stain on the bolster, the black brassiere, finger nail clippings of the left hand of the deceased, strand of hairs found on the comforter and finally the electrical cord used to tie the legs of the deceased. The chemist referred to this person as the 'unknown male 1'. It was held that,
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[2007] 2 CLJ 33 [2008] 3 MLJ 161

For reasons discussed above, the prosecution has not discharged its burden in this case before us. The most damning evidence against the prosecution was the presence of the man with the foul body odour in the apartment and the scientifically proven DNA of the 'unknown male 1' recovered from the deceased's body which remains unrebutted. In this issue, there are 12 other persons in the house, which are the unidentifiable male persons. The prosecution failed to prove that the 12 other male persons also involved in the gang rape. We couldnt put my clients in the place that they are the only persons that had raped the victim. In the prosecutions mind that only my clients are the one who raped the victim, where there are also other 12 male persons involved in the rape. There is no cause of action for convicting my clients where there are other unknown males that involved in the case. In concluding my first submission, there is no prima facie that being established as the prosecution had failed to prove the ingredients part s against my clients.

My second submission is failure by the prosecution to call Justin, In the case of Ab Malek Bin Atan v Public Prosecutor9, PW5 had made a complaint to Jeffry bin Saad soon after the second incident. He had given a statement to the police and was available. If he had been called to testify on the complaint made to him, his evidence would amount to corroborative evidence pursuant to s 157 of the Evidence Act 1950 to lend support to the testimony of PW5. Unfortunately, he was not called as a witness. He was merely offered to the defence. Where a witness is necessary to enable the prosecution to make out its case, he must be called; merely offering him to the defence will result in the prosecution 2002 4 MLJ 84 at 96 Leaving gaps in its case with the result that it cannot be said to have discharged the burden it bears (see Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705). In the circumstances, the failure by the prosecution to call Jeffry bin Saad is fatal to its case. To compound matters, even the police report made by PW5 was not tendered in evidence. The unresolved contradiction in a material part of the evidence of PW5 in relation to the second charge thus leaves her credibility in suspense In this case, Justin is not call upon to the court to give his testimony and being a witness. There is no solid proof of what the real situation in the house. They police relied on their report to arrest Damien, Zander and the others man. However, the prosecution failed to bring him before the court to appear as a witness. Citing the judge presiding Ab Maleks case, the failure by the prosecution to call Justin is fatal to this case. Moreover, the police report made by him also is not being tendered as evidence. So the credibility of Sonia as the victim should be rejected by the court. In conclusion, there is no prima facie in this case against Damien and Zander and the credibility of the victim should be rejected. I do pray the court on the behalf of the Appellants to quash the conviction and the sentence imposed on my clients.

(2002) 4 MLJ 84