ASIHAR BIN KAMARUDDIN v Pendakwa Raya

aa-42jsks-3-08-2024 High Court (Mahkamah Tinggi) 6 May 2025 • AA-42JSKS-3-08/2024 • 23 min read

23 cases cited (0 SG, 23 foreign)

Outcome

The conviction is therefore set aside, and the appellant is acquitted and discharged.

Quoted verbatim from the judgment of High Court (Mahkamah Tinggi) (aa-42jsks-3-08-2024). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Criminal Law — Sexual Offences Against Children Act 2017 — s 14(a) — Physical sexual assault — Whether Sessions Judge erred in rejecting defence as afterthought — Whether line of defence was put during cross-examination — Whether failure to evaluate defence constituted material misdirection — Whether misdirection occasioned miscarriage of justice Evidence — Cross-examination — Scope and effect — Defence case put to complainant — Complainant denied — Whether trial court erred in holding defence not put — Whether failure to evaluate defence — Whether misdirection in law — Whether miscarriage of justice Evidence — Standard of proof — Reasonable doubt — Whether burden on prosecution discharged — Whether false or weak defence fatal to accused — Whether trial court misapplied test of inherent reasonableness Criminal Law — Sexual Offences Against Children Act 2017 s 14(a) — Physical sexual assault — Whether complainant under 18 years — Whether age proven beyond reasonable doubt — Whether IC sufficient to prove age — Whether burden on prosecution discharged Criminal Procedure — Appeal — Sentence — Judicial discretion — Whether sentence within legal bounds — Whether Sessions Court imposed sentence with rational consideration of all relevant factors — Whether discretion exercised in unauthorised, extraneous or irrelevant manner — Whether appellate court should interfere

Practice Areas

Criminal Law

Judges (1)

Moses Susayan Delivered

Counsel (4)

Charanjit, V. Santhiran and Partners Firm Perak Legal Advisor Offices Firm Geetha Jora Singh Counsel Prosecution V. Santhiran Counsel Accused

Parties (2)

Pendakwa Raya Respondent Asihar bin Kamaruddin Appellant

Case Significance

A clear statement that a trial court's failure to evaluate a defence actually put to the complainant in cross-examination — wrongly treated as never raised — is a material misdirection occasioning a miscarriage of justice, warranting the conviction being set aside and the accused acquitted.

This decision of the High Court of Malaya at Ipoh determines the accused's appeal, consolidated with the prosecution's sentence appeal, against a conviction under section 14(a) of the Sexual Offences Against Children Act 2017 for physical sexual assault of a child, entered by the Sessions Court at Teluk Intan after a full trial. The central ground of the accused's appeal was that the trial court had misdirected itself in rejecting his defence as an afterthought on the erroneous premise that the defence had not been put to the prosecution's witnesses during the prosecution stage, when the record showed that it had in fact been put, including to the complainant.

The court accepted that ground. Examining the notes of cross-examination, it found that the defence case had indeed been put to the complainant, who denied it, so the trial judge's characterisation of the defence as never having been raised at the prosecution stage was factually wrong. That error mattered because it led the trial judge not to evaluate the defence on its merits at all; a defence that raises a reasonable doubt need not be believed to entitle an accused to an acquittal, and the failure to weigh it deprived the accused of a fair consideration of his case. Drawing on the settled standard that it is sufficient for the defence to cast a reasonable doubt on the prosecution case, and observing that it could not be said with certainty that the trial judge would still have convicted had she correctly appreciated the position, the court held that these cumulative misdirections had occasioned a miscarriage of justice. It allowed the accused's appeal, set aside the conviction, and ordered that he be acquitted and discharged. The judgment is a clear statement of the consequences of failing to evaluate a defence properly put in cross-examination.

On what ground did the accused's appeal succeed?

The accused showed that the trial court had wrongly rejected his defence as an afterthought, on the false basis that it was never put to the prosecution witnesses. The record showed the defence had been put to the complainant, who denied it, so the trial judge's failure to evaluate that defence was a material misdirection that deprived the accused of a fair consideration of his case.

What was the outcome of the appeal against conviction?

The court allowed the appeal, holding that the cumulative misdirections had occasioned a miscarriage of justice. It set aside the conviction under section 14(a) of the Sexual Offences Against Children Act 2017 and ordered that the accused be acquitted and discharged, applying the principle that a defence need only raise a reasonable doubt to entitle an accused to acquittal.

Statutes Cited

Evidence Act 1950 (Cap 56)

Cases Cited (23)

MY (23)

[1963] 1 MLRH 400 [1963] MLJ 263 [1971] 1 MLRH 91 [1971] 2 MLJ 16 [1981] 1 MLJ 212 [1982] 1 MLJ 83 [1984] 2 CLJ 219 [1985] 1 MLJ 38 [1991] 3 MLJ 169 [1995] 2 MLJ 770 [1995] 3 AMR 2375 [1995] 3 CLJ 639 [1998] 2 CLJ 1 [1998] 2 MLJ 577 [1999] 1 AMR 1 [1999] 3 CLJ 640 [2005] 1 AMR 405 [2005] 1 CLJ 1 [2005] 1 MLJ 699 [2005] 2 CLJ 655 [2005] 3 AMR 107 [2005] 4 MLJ 733 [2014] 6 MLJ 282

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (aa-42jsks-3-08-2024)