1. ) KETHEESWARAN A/L M KANAGARATNAM 2. ) VIVIENNE KETHEESWARAN v Pendakwa Raya
Catchwords
[1] In the present case, having examined section 61A by itself and in context earlier, we find that judicial power has in no way been abrogated, curtailed or subjugated to the Legislature by any means whatsoever. The use of the phrase ‘prima facie evidence’ by no means has the conclusive effect as erroneously proposed by the appellants. In all cases, the defence retains the ability to call rebuttal evidence and the Judiciary retains the obligation to evaluate all the evidence at the close of the prosecution’s case sufficient to warrant a conviction before calling for defence. [2] We are inclined to accept the respondent’s submission that when depositions under section 61A are tendered as evidence, even as prima facie evidence of any facts stated in the deposition, the prosecution is not absolved of its obligation to prove a prima facie case including but not limited to adducing further evidence that is available or in certain cases, corroborating the depositions. [3] Insofar as the right to a fair trial is concerned, it is our view that section 61A has fairly triangulated the rights of the accused, the victims and public interest. [4] Reading section 61A in context, we find that there is in the first place, no discrimination against the appellants as regards sections 52 and 61A. The two provisions are entirely different provisions catering for different procedures for different circumstances which have been explained above. In any case, the basis for the application of section 61A over section 52 is clear in that the former applies when a witness can no longer be found by virtue of them having been deported pursuant to the applicable provisions of Act 155. CONSTITUTIONAL REFERENCE: Constitutionality of Section 61A of Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (“ATIPSOM”) – Section 30 and Section 84 of the Courts of Judicature Act 1964 - separation of power – whether Section 61A of ATIPSOM is unconstitutional? – prima facie evidence - judicial power – Article 121(1) of the Federal Constitution – Fundamental Liberties – Article 5(1) of the Federal Constitution – Fair Trial – procedural and substantive fairness – cross-examination of the deponents – Article 8(1) of the Federal Constitution – principle of proportionality – Section 52 of ATIPSOM -
Practice Areas
1 In the present case, having examined section 61A by itself and in context earlier, we find that judicial power has in no way been abrogated, curtailed or subjugated to the Legislature by any means whatsoever. The use of the phrase ‘prima facie evidence’ by no means has the conclusive effect as erroneously proposed by the appellants. In all cases, the defence retains the ability to call rebuttal evidence and the Judiciary retains the obligation to evaluate all the evidence at the close of the prosecution’s case sufficient to warrant a conviction before calling for defence. 2 We are inclined to accept the respondent’s submission that when depositions under section 61A are tendered as evidence, even as prima facie evidence of any facts stated in the deposition, the prosecution is not absolved of its obligation to prove a prima facie case including but not limited to adducing further evidence that is available or in certain cases, corroborating the depositions. 3 Insofar as the right to a fair trial is concerned, it is our view that section 61A has fairly triangulated the rights of the accused, the victims and public interest. 4 Reading section 61A in context, we find that there is in the first place, no discrimination against the appellants as regards sections 52 and 61A. The two provisions are entirely different provisions catering for different procedures for different circumstances which have been explained above. In any case, the basis for the application of section 61A over section 52 is clear in that the former applies when a witness can no longer be found by virtue of them having been deported pursuant to the applicable provisions of Act 155. CONSTITUTIONAL REFERENCE: Constitutionality of Section 61A of Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (“ATIPSOM”)
Judges (5)
Case Significance
1. ) KETHEESWARAN A/L M KANAGARATNAM 2. ) VIVIENNE KETHEESWARAN v Pendakwa Raya is a Federal Court (Mahkamah Persekutuan) decision dated January 4, 2024 (citation: 06rj-1-03-2023b). The panel comprised Abdul Karim bin Abdul Jalil, Abu Bakar bin Jais, Harmindar Singh Dhaliwal, Mohamad Zabidin bin Mohd Diah and Tengku Maimun binti Tuan Mat, with Tengku Maimun binti Tuan Mat delivering the judgment.
What was the outcome of 1. ) KETHEESWARAN A/L M KANAGARATNAM 2. ) VIVIENNE KETHEESWARAN v Pendakwa Raya?
1. ) KETHEESWARAN A/L M KANAGARATNAM 2. ) VIVIENNE KETHEESWARAN v Pendakwa Raya is a Federal Court decision dated January 4, 2024. The case was heard by Abdul Karim bin Abdul Jalil. See the full judgment for details.