MUHAMMAD BIN JUWAHIR@JUHIL v Pendakwa Raya

Case Significance

Confirms that fresh evidence on a criminal appeal under section 61 of the Courts of Judicature Act 1964 is admitted only where it satisfies the Murugayah threshold — relevance, prior unavailability, probative value and capacity to raise a doubt — and will be refused as a second bite at the cherry where it could not have affected the verdict.

This Court of Appeal decision concerns an application to adduce fresh evidence on a criminal appeal. The applicant had been charged in the Sessions Court with a physical sexual assault on a young child, an offence under section 14(a) of the Sexual Offences Against Children Act 2017, convicted, and sentenced to five years' imprisonment; his conviction and sentence had been affirmed by the High Court. Before the Court of Appeal he applied, under section 61 of the Courts of Judicature Act 1964, for leave to adduce fresh evidence, said to bear on his mental and physical state, contending that exceptional circumstances existed. The Court applied the established principles governing the reception of fresh evidence on appeal, drawn from Murugayah v Public Prosecutor, under which the evidence must be relevant to an issue arising, must have been unavailable at the time of trial, must have probative value and be credible and reliable, and must be such that, taken together with the other evidence at trial, it could have raised a doubt in the mind of the trial judge. Examining the material the applicant sought to introduce, the Court held that even if it existed after the conviction and sentence, it would not have raised any doubt in the mind of the Sessions Court judge about the applicant's guilt or about his mental and physical state, even if considered alongside the other evidence available at trial. The additional documents therefore could not save or support the application. The Court characterised the application as clearly an attempt to have a second bite at the cherry that did not meet the threshold under section 61, and, finding that no failure of justice would result from refusing it, dismissed the application. The decision reinforces that the appellate process is not an opportunity to reopen a concluded trial by assembling material that would not have altered the verdict, and that the finality of a conviction, once affirmed on a first appeal, will not be disturbed on the strength of evidence lacking real probative force.