Kartigeyan a/l Krishnan v Public Prosecutor [2013] 1 MLJ 278

Court of Appeal (Putrajaya)

Offence of Rape and Murder

1.     The Appellant (‘Accused’), who had raped and murdered a 27-year-old girl (‘the Deceased’) was sentenced by the High Court to death for the murder and given a sentence of 20 years’ jail plus 15 strokes of the rotan for committing the rape.

2.     According to the prosecution’s evidence, the Deceased who worked in a fast-food outlet in Singapore with a work colleague (‘SP10’) were in a van driven by the Accused on the way home after work on the night before the offences were committed.

3.     SP10 had testified that after she had been dropped off at a bus stop, the Deceased was the only passenger left in the van.

4.     The Deceased was found dead in an oil palm plantation the following morning.  She had been raped, there were multiple injuries on her body and the cause of death was head injury due to blunt trauma.

5.     At the close of the prosecution’s case, the trial judge held a prima facie case on the murder and rape charges had been made out and the Accused’s defence was called.

6.     As the Accused opted to remain silent and call no witnesses on his behalf, the Court proceeded to convict and sentence him on both charges.

1.     Whether the High Court was right in convicting the Accused for the offence of murder and rape.

1.   Whether the High Court was right in convicting the Accused for the offence of murder and rape.

(a)   On the first head of challenge, the learned counsel for the Appellant directed the Court’s attention to the testimony of the forensic pathologist SP6 that he cannot rule out the possibilities of more than one assailant causing the injuries suffered by the Deceased and by reason thereof it has negatived the establishment of a prima facie case by the prosecution.

(b)   The determination of such an issue cannot be answered by viewing it in the restrictive context of the presence of more than one person.

(c)   This is because, the circumstances of the case and the forensic evidence must be looked into in arriving at a determination of the issue.

(d)   It is not in dispute that the prosecution’s case rests entirely on circumstantial evidence.

(e)   At this juncture, it is appropriate to recapitulate the three tests applicable in relation to circumstantial evidence as propounded by the Supreme Court of India in Chandmal & Anor v State of Rajasthan AIR 1970 SC 917 and approved by our Federal Court in Magendran a/l Mohan v Public Prosecutor [2011] 6 MLJ 1 at p 9 (MLJ); [2011] 1 CLJ 805; p 815 (CLJ) namely-

“Firstly, the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. Secondly those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. Thirdly, the circumstances taken cumulatively, should form a chain to complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and no one else. That is to say the circumstances should be incapable of explanation on any reasonable hypothesis save that of the accused’s guilt.

(f)     In evaluating the circumstantial evidence of the case, the learned trial judge took into consideration the circumstances prior and post the crime.

(g)   He took into consideration the evidence of SP6, SP10 and the DNA evidence before concluding that the possibility of others being involved in the crime did not create any reasonable doubt in his mind that it was the Appellant that was the perpetrator of the crime for which he was charged.

(h)   Therefore, the Court concluded and affirmed that there is no error on the part of the learned trial judge in his conclusion aforesaid.

(i)      Next, the Court address on the challenge of learned counsel for the Appellant that the DNA (abbreviation for deoxyribonucleic acid) evidence adduced does not conclusively point to the Appellant being the perpetrator of the offences charged.

(j)      The Court had in dismissing the Appellant’s first ground of challenge aforesaid upheld the learned judge reliance on the DNA evidence as a circumstance pointing towards the Appellant’s guilt.

(k)    DNA evidence is now widely used in the field of criminal law. DNA evidence involves an analysis of the process to determine the statistical likelihood that the sample of material from which it was taken came from a particular person.

(l)      DNA is a complex molecule in the form of a double helix. DNA analysis relies on the fact that different regions (or loci) contain repeated blocks of material known as ‘alleles’. A person’s DNA profile is currently built up by reference to the alleles present at the chosen ten loci and the sex indicator.

(m)  The learned trial judge in his written grounds was satisfied that the government chemist En Mohd Izuan bin Othman (SP7) gave detailed evidence as to the examination and analysis conducted on all the exhibits forwarded to him.

(n)   From his analytical and well-reasoned judgment, the trial judge was impressed with the academic qualifications, experience and credentials of SP7.

(o)   The tests conducted and the methods used by SP7 in conducting the DNA analysis was in accordance with international standards and the results obtained were accurate.

(p)   The findings and conclusions of the learned trial judge on the DNA is more than amply justified by the available evidence and there is no room for appellate interference.

(q)   Moving on, the third ground of challenge pertaining to the Appellant’s age of approximately 18 years and 11 months at the time of the commission of the offence can be dismissed outright as the age factor does not exculpate or dismiss the Appellants culpability for the offence charged.

(r)     In the light of the learned trial judge’s finding that the prosecution has successfully proven a prima facie case and upon the Appellant electing the exercise his right to remain silent, the question arises whether the learned trial judge erred in convicting the Accused.

(s)     In convicting the Appellant, the learned trial judge had at the forefront of his mind the procedure enshrined in Section 182A of the Criminal Procedure Code (Act 593) whereby he must consider all the evidence adduced before him and decide whether the prosecution has proved its case beyond reasonable doubt.

(t)     The learned trial judge in concluding that a prima facie case has been made out had relied on the maximum evaluation principle as laid down in the case of Looi Kow Chai & Anor v Public Prosecutor [2003] 2 MLJ 65.

(u)   The legal position as it stands is that when the Appellant elects to remain silent, the Court is put in a situation where it has no other choice but to convict the Appellant on the charges as the Appellant had failed to rebut the evidence adduced by the prosecution’s witnesses [decision by the Federal Court in Balachandran v Public Prosecutor (2005) 2 MLJ 301].

1.     The Court of Appeal dismissed the appeal and affirmed the convictions recorded and the sentence meted out by the learned trial judge.

1.     Section 180 of Act 593 provides for the standard of proof to be applied by a judge at the conclusion of the prosecution’s case in order to determine whether to call the accused to enter his defence or otherwise.

2.     Therefore, the Court should undertake the maximum evaluation of all the prosecution’s evidence made available; maximum evaluation indicates maximum scrutiny of the prosecution’s evidence.

3.     However, this cannot be equated with proving the accused’s guilt beyond reasonable doubt during the intermediate stage of the trial, as opposed to at the conclusion of the matter after hearing all defence witnesses, if any.