TEVAGAR A/L THURAISINGAM v Pendakwa Raya

Case Significance

Instructive on the limits of the intoxication defence under section 85 of the Penal Code in a section 302 murder appeal, and on the appellate treatment of a key witness alleged to be an accomplice.

This Court of Appeal decision concerns an appeal against conviction and sentence for murder under section 302 of the Penal Code. The appellant had been convicted in the High Court at Klang of the murder of the victim and sentenced to 35 years' imprisonment from the date of arrest and 12 strokes of whipping, the charge having been read with section 34 of the Penal Code, and his appeal was heard together with that of a co-accused convicted of the same offence. On the same day, the Court of Appeal allowed the co-accused's appeal and set aside his conviction and sentence, while dismissing the appellant's appeal; these grounds explain the dismissal of the appellant's appeal, which had been decided ex tempore. The issues raised on the appellant's behalf were whether there was a doubt that he had struck the victim with the intention of causing bodily injury that caused death, the credibility and reliability of a key prosecution witness and whether that witness was an accomplice or a joint participant in the crime, and a defence of extreme intoxication. The court, comprising Mohamed Zaini bin Mazlan, Noorin binti Badaruddin and Mohd Radzi bin Abdul Hamid JJCA, found no meritorious issue in the appeal. On intoxication it held that self-induced intoxication is not a defence under section 85(2)(a) of the Penal Code, that there was no scientific evidence to support the claimed intoxication, and that the appellant's conduct before and after the offence showed that he knew what he was doing; the appellant had failed to discharge the burden of showing that his intoxication was not self-induced and had deprived him of the capacity to know the nature and consequences of his acts. Finding no error of fact or law in the High Court's decision, the court unanimously held that the appellant had shown no reason to disturb his conviction and sentence, dismissed the appeal and affirmed the conviction and sentence. The judgment is instructive on the limits of the intoxication defence and on appellate treatment of a witness alleged to be an accomplice.