Arshad Bin Masdin v Pendakwa Raya

s-09-49-02-2023 Court of Appeal (Mahkamah Rayuan) 20 January 2025 • S-09-49-02/2023 • 32 min read

12 cases cited (0 SG, 12 foreign)

Outcome

For the aforesaid reasons, we unanimously allow the appeals and set aside the conviction and sentence imposed by the courts below.

Quoted verbatim from the judgment of Court of Appeal (Mahkamah Rayuan) (s-09-49-02-2023). Read the full judgment on the official Malaysia Courts portal for the complete decision.

Catchwords

Section 376(2)(a) of the Penal Code [Act 574] read together with section 511 - offence of attempted rape – Issue: Whether the appellant was the person who sexually assaulted the victim - Physical contact between the appellant and the victim's body - Physical contact between the appellant and the victim's brassiere - Physical contact between the appellant and the victim's room window grill - Failure to consider the absence of victim blood on the appellant’s clothing - DNA evidence - failure to consider such material evidence is a miscarriage of justice - serious misdirection that warrants the court to intervene, interfere and reverse the concurrent finding of fact on the identification issue - forensic evidence plays an important role in determining the identity of the culprit - Alibi Defence - alibi evidence need not be corroborated - section 114(g) of the Evidence Act 1950 - the evidence of alibi need only raise a reasonable doubt - Identification Parade - identification parade was not in accordance with Perintah Tetap Ketua Polis Negara - court identification was defective, irregular and improperly held – Issue: Whether information leading to discovery (section 27 of the Evidence Act 1950) is inadmissible - improper admission of exhibit - no evidence of the discovery of the items mentioned in the oral and written statements - conviction is unsafe

Practice Areas

Criminal Law Evidence Criminal Procedure

Judges (3)

Azhahari Kamal bin Ramli Coram Azmi bin Ariffin Delivered Che Mohd Ruzima bin Ghazali Coram

Counsel (4)

Hamid & Co. Firm Hamid Ismail Counsel Appellant Mohamad Arif Aizuddin Masrom Counsel Prosecution Shahlan Bin Zufri Counsel Appellant

Parties (2)

Pendakwa Raya Respondent Arshad bin Masdin Appellant

Case Significance

Confirms that forensic evidence excluding an accused as the source of DNA found on the complainant and at the scene can render a conviction for a sexual offence unsafe, and an appellate court will quash the conviction where the identification of the assailant is not securely established.

This Court of Appeal decision at Kota Kinabalu concerns a conviction for attempted rape that the appellate court found to be unsafe on the evidence. The appellant had been charged and tried in the Sessions Court at Kota Kinabalu under section 376(2)(a) of the Penal Code read with section 511 — the offence of attempted rape — arising from an incident at a university residential college in the early hours, in which it was alleged he had tried to commit rape on the complainant and, in the attempt, had forcibly removed and torn her clothing. He was convicted, and his appeal to the High Court having failed, he appealed further to the Court of Appeal. The central issue was one of identity: whether the appellant was in fact the person who had sexually assaulted the complainant.

The Court of Appeal scrutinised the evidence connecting the appellant to the assault. The forensic evidence was significant: DNA belonging to an unknown male was found in the complainant's fingernail, on her brassiere and on the grill of her room window, and that DNA excluded the appellant as its source. The court held that this was not a case of a bare denial but of positive forensic evidence pointing away from the appellant, and it considered that the courts below had failed to give proper weight to matters including the absence of the complainant's blood on the appellant's clothing. Reminding itself that its duty in a criminal appeal is to ask whether the conviction is safe — not merely whether the trial judge's decision was wrong — the court found merit in the appeal.

The Court of Appeal unanimously allowed the appeal and set aside the conviction and sentence imposed by the courts below. The judgment illustrates that forensic evidence excluding an accused as the source of DNA found on the complainant and at the scene can render a conviction unsafe, and that an appellate court will quash a conviction where the identification of the assailant is not securely established.

Summary

The appellant was convicted of attempted rape of a university student at UMS student housing and sentenced to 13 years' imprisonment with 6 strokes of whipping. The Court of Appeal allowed the appeal and set aside the conviction, finding the trial court erred in relying on inadmissible evidence and the DNA evidence of an unknown male found on the victim's bra and room window grill excluded the appellant as the assailant.

What was the appellant convicted of?

Attempted rape under section 376(2)(a) of the Penal Code read with section 511, arising from an incident at a university residential college; the central issue on appeal was whether he was the person who had assaulted the complainant.

Why did the Court of Appeal find the conviction unsafe?

DNA from an unknown male found on the complainant's fingernail, brassiere and window grill excluded the appellant, and the courts below had failed to weigh matters such as the absence of the complainant's blood on his clothing; the forensic evidence pointed away from the appellant.

What did the court order?

The Court of Appeal unanimously allowed the appeal and set aside the conviction and sentence imposed by the courts below.

Statutes Cited

Criminal Procedure Code (Cap 593)

Evidence Act

s 114(g)

Evidence Act 1950 (Cap 56)

s 114(g) s 27

Penal Code (Cap 574)

s 376(2)(a) s 511

Cases Cited (12)

UK (1)

[2013] 1 WLR 2477

MY (11)

[1966] 1 MLJ 116 [1977] 2 MLJ 78 [1981] 1 MLJ 84 [1987] 1 CLJ 471 [2005] 1 CLJ 389 [2007] 3 CLJ 281 [2008] 4 CLJ 1 [2013] 9 CLJ 48 [2013] 9 CLJ 692 [2016] 3 CLJ 895 [2020] 12 MLJ 67

Judgment

Read the full judgment on the official Malaysia Courts portal.

Read on eJudgment

Source: eJudgment (s-09-49-02-2023)