Pendakwa Raya v AKMAL HAKIM BIN HADI MUNIR

Case Significance

Instructive on the prudence rule for convicting on the uncorroborated testimony of a child under the Sexual Offences Against Children Act 2017 and the Evidence Act 1950, and on the narrow scope for an appellate court to reverse a trial court's acquittal.

This High Court decision at Johor Bahru concerns an appeal by the Public Prosecutor against an acquittal in a child sexual offence prosecution. The accused, a schoolteacher, had been charged under section 14(a) of the Sexual Offences Against Children Act 2017 read with section 16(1) of the same Act, on an allegation of physical sexual assault of a child pupil during a school examination, and the Sessions Court had acquitted and discharged him at the close of the defence case. The prosecution appealed, arguing that the trial judge had erred in the assessment of the evidence. The judgment is a careful treatment of the principles governing conviction on the evidence of a child witness and of appellate intervention in findings of fact. The court examined whether a conviction could rest on the uncorroborated testimony of a child, the requirement that such testimony be scrutinised with prudence and be, in effect, unusually convincing, and whether a first complaint to a parent could amount to corroboration under sections 157 and 8 of the Evidence Act 1950, noting the significance of the mother's subsequent withdrawal of the complaint. It also considered whether an adverse inference under section 114(g) of the Evidence Act arose from the failure to record statements from the roughly twenty other students present, distinguishing between evidence merely not obtained and evidence withheld or suppressed. Weighing the material inconsistencies in the child's evidence, the withdrawal of the complaint, the absence of any supporting evidence from the many others present, and the plausibility of the defence in the context of COVID-19 protocols, the court held that a reasonable doubt had been raised and that the benefit of that doubt belonged to the accused. Applying the settled rule that an appellate court should not interfere with a trial court's findings of fact and credibility unless plainly wrong or perverse, the court, per Atan Mustaffa Yussof Ahmad J, found no such error, dismissed the appeal and affirmed the acquittal. The judgment is instructive on the standard for convicting on child testimony and on the narrow scope for appellate reversal of an acquittal.