CHE AZIAN @ ZULAZLI BIN CHE IBERAHIM v Pendakwa Raya

Case Significance

Illustrates that an adverse inference under section 114(g) of the Evidence Act 1950 will not be drawn for failing to call witnesses whose evidence would merely repeat the complainant's account, and that a conviction under section 376B(1) of the Penal Code may rest on a credible complainant supported by medical evidence.

This High Court decision at Kota Bharu concerns an appeal against conviction and sentence for an offence under seksyen 376B(1) Kanun Keseksaan (section 376B(1) of the Penal Code) — incest — the complainant being the appellant's stepchild, aged about eleven at the time. The procedural history was unusual: at the close of the prosecution case the trial judge had acquitted the appellant without calling for a defence, but on the prosecution's appeal the High Court ordered that the appellant be called to enter his defence; at the end of the defence the Sessions Court convicted him and imposed 15 years' imprisonment from the date of conviction together with three strokes of the cane. The appellant then appealed against both conviction and sentence.

The issues on appeal were the credibility of the complainant, the appellant's alibi defence, and whether an adverse inference under section 114(g) of the Evidence Act 1950 should be drawn against the prosecution for failing to call certain witnesses — the complainant's grand-aunt and a cousin's mother. The court held that the credibility of the complainant had been properly accepted, supported by the medical evidence, and that the alibi did not displace the prosecution case. On the uncalled witnesses, it reasoned that their evidence would have amounted only to a "repeat broadcast" of what the complainant had told them, and so would not have been independent evidence capable of materially supporting or contradicting the prosecution case; their absence therefore did not attract an adverse inference under section 114(g).

Finding no merit in the appeal, and noting that sentence was not in the event argued, the court dismissed the appeal and affirmed the conviction and the sentence of 15 years' imprisonment and three strokes, while allowing a stay of execution pending a further appeal to the Court of Appeal. The judgment illustrates the limits of the section 114(g) adverse inference.