Wan Aziz Bin Wan Omar v Pendakwa Raya

Case Significance

Illustrates the operation of the section 402A alibi-notice requirement and the appellate court's reluctance to interfere with a trial court's credibility findings, in dismissing appeals against convictions for rape under section 376(3) of the Penal Code.

This High Court decision at Kota Bharu is one of the consolidated criminal appeals, heard together, against convictions and sentences imposed by the Sessions Court at Kota Bharu for offences of rape under seksyen 376(3) Kanun Keseksaan (section 376(3) of the Penal Code). The charges concerned rape committed where the relationship between the appellant and the complainant was one in which marriage between them was not permitted under law, religion, custom or usage. The complainant is referred to only by her role, and no identifying particulars are set out here. As in the connected appeal, the determinative issue was the appellant's reliance on an alibi and the effect of seksyen 402A Kanun Tatacara Jenayah (section 402A of the Criminal Procedure Code), which obliges an accused intending to raise an alibi to serve advance notice of it on the prosecution. The court recorded that the appellant had given no alibi notice at the case-management stage or before testifying at trial, so that when the alibi was not accepted there remained no alternative defence and his evidence reduced to a bare denial that could not raise a reasonable doubt. Considering the grounds of the Sessions Court judge, the notes of proceedings and the parties' submissions, the High Court found no basis to disturb the convictions or the sentences, holding that the trial court's assessment of the evidence was sound. It dismissed the appeals and maintained the decision of the Sessions Court. The judgment is a useful illustration of how the alibi-notice requirement in section 402A operates in practice, and of the appellate court's reluctance to interfere with concurrent findings of a trial court that has assessed the credibility of the witnesses at first hand. The court also reiterated that the burden remained on the prosecution to prove the charges beyond reasonable doubt, and that its conclusion was reached only after the whole of the evidence had been weighed; the failure of the belated alibi did not shift that burden but simply left the appellant without a substantive answer to the case established against him at trial.