Pendakwa Raya v MOHD ISMAIL BIN ISHAK
Catchwords
Criminal Procedure — Appellate jurisdiction — Prosecution's appeal against acquittal — Role of appellate court — Whether to re-assess evidence as retrial — When Intervention warranted - where trial court misdirected itself in law, applied wrong test, or reached conclusion no reasonable court could have reached — Herchun Singh v PP [1969] 1 MLRA 382; Lee Kwan Woh v PP [2009] 5 MLJ 301 applied Criminal Law — Outrage of modesty — Section 354 of the Penal Code — Elements of the offence — Whether criminal force applied with intent to outrage modesty Definition of 'outraging modesty' — Meaning of term not defined in Penal Code — Culpable intention of accused is crux of the matter — Test is whether a reasonable man would think that the act was intended to or was known to be likely to outrage the modesty of the victim — Test based on intention and knowledge of accused, not reaction of victim — Culpable intention of accused is crux of the matter — Essence of woman's modesty is her sex - State of Punjab v Major Singh AIR [1967] SC 63 and Zulkifli Hashim v PP [2017] 1 LNS 1768 applied Criminal Procedure — Prima facie case — Section 173(f) Criminal Procedure Code — Prosecution's appeal against acquittal at close of prosecution case — Whether learned Magistrate correctly applied test for prima facie case — Maximum evaluation of prosecution evidence required Evidence — Sexual offences — Unusually convincing evidence — Where complainant's evidence uncorroborated, must be unusually convincing before court may convict — Meaning of 'unusually convincing' — Testimony that when weighed against overall backdrop of available facts and circumstances contains ring of truth leaving court satisfied no reasonable doubt exists in favour of accused — PP v Muhammad Liton Mohammed Syeed Mallik [2008] 5 SLR 601; PP v Mohammad Malek Ridhzuan Che Hassan [2014] 1 MLJ 363 applied Evidence — Corroboration — Independent corroboration — Witnesses who learned of incident from complainant only — Whether independent corroborative evidence — Testimonies of SP2, SP3, SP4 and SP6 derived from accounts narrated by complainant and not independent — R v Baskerville [1916] 2 KB 658 applied Evidence — Corroboration — Previous consistent statement — Section 157 Evidence Act 1950 — Complainant alleged to have informed superior of incident — Superior not called to give evidence — Whether previous statement admissible as corroboration — Previous statement admissible to show consistency only and evaluated for weight — True corroboration requires independent testimony from extraneous source — Mohd Ali v PP [1962] MLJ 230 applied Evidence — Delay in making complaint — Three-year delay in lodging police report — Whether explained satisfactorily — Complainant lodged report one day after accused lodged a counter-report — Superior who allegedly advised against reporting not called as witness — No reasonable explanation established — Delay not per se fatal but reasons must be considered — Azizan Ibrahim v PP [2016] 6 CLJ 240; Lim Chee Soon v PP [2016] 1 LNS 1347 distinguished. Evidence — Victim's reaction to offence — Failure to scream or resist at material time — Whether affects credibility of complainant's evidence — 'Fight, flight or freeze' psychological response — No independent evidence adduced to explain victim's lack of reaction — Absence of reaction not automatically fatal but requires proper evidential foundation Evidence — Investigating officer — Incomplete investigation — Duty roster at complainant's workplace not obtained — Unable to explain three-year delay in reporting — Investigation diary incomplete and not updated — Effect of incomplete investigation on prosecution's case Evidence — Minority judgment — Whether forms part of ratio decidendi — Reliance on minority view in Court of Appeal not proper — Only
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Judgment
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