Luqman Hadi Bin Mustapa v Public Prosecutor and Another Appeal [2022] 6 MLJ 597

LUQMAN HADI BIN MUSTAPA V PUBLIC PROSECUTOR AND ANOTHER APPEAL [2022] 6 MLJ 597

Court of Appeal (Putrajaya)

Defence of Insanity in Murder Case

Facts 1.     The Appellant was charged with three counts of murder under Section 302 of the Penal Code (Act 574) and two counts of attempt to commit murder under Section 307 of Penal Code (Act 574).

2.     The offences were committed by the Appellant in a house located in the district of Melaka Tengah.

3.     Based on the evidence of one of the victims (‘SP9’), during the incident, the Appellant said to SP9 that he did the act out of revenge.

4.     After the incident, the Appellant absconded from the house by driving SP9’s car. The Appellant was then found by the police in a toilet at the Al Falah Mosque.

5.     All victims in this case suffered severe and multiple injuries including slash wounds on the neck and amputation of fingers.

6.     The High Court found that prima facie case was established and called the Appellant to enter his defense.

7.     The Appellant elected to remain silent and subsequently the defence called Dr Yeoh Chia Min (‘SD1’) to tender a psychiatric report dated 18 June 2017, prepared by the late Dr Badiah bt Yahya (‘Dr Badiah’).

8.     SD1 admitted that he had no personal knowledge of the Appellant’s case.

9.     At the conclusion of the case, the High Court determined that the defence had failed to establish the insanity defence provided under Section 84 of the Act 574 and that the prosecution had proven its case against the Appellant on all charges beyond reasonable doubt.

10.  In the current appeal, the Appellant’s counsel contended that Dr. Badiah’s psychiatric report revealed that the Appellant had ‘Substance-Induced Psychotic Disorder’ as a result of prolonged drug use, and that Dr. Badiah believed the Appellant was insane and did not realise what he did at the time was illegal.

11.  This was in effect a defence of insanity under Section 84 of the Act 574 but the counsel for the Appellant in the present appeal relied on Section 85(2)(b) of the Act 574.

12.  Aside from the defence of insanity, the Appellant further submitted that the prosecution had failed to comply with Section 343(1) and (3) of the Criminal Procedure Code (Act 593).

Issue 1.     Whether the Appellant may successfully establish the defence of insanity provided under Section 84 of the Act 574?

2.     Whether there is a breach of Section 343(1) and (3) of the Criminal Procedure Code (Act 593)?

Ratios 1.     Defence of Insanity

(a)   Counsel for the Appellant submitted that the psychiatric report by Dr Badiah showed that the Appellant suffered ‘Substance-Induced Psychotic Disorder’ due to prolong drugs consumption and Dr Badiah was of the view that the Appellant was insane and did not know what he did at the material time was wrong in law.

(b)  The Court viewed this as the defence of insanity under Section 84 of the Act 574.

(c) However, counsel for the Appellant was relying on Section 85(2)(b) of the Act 574.

(d)  Section 84 of the Act 574 provides as follows:

“Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. All they have to do is to submit evidence that illustrates the lack of consent, like what they had done in the present case”.

(e)  Here, it is trite law that the Appellant must establish legal insanity as prescribed under that Section 84 of the Act 574 to exonerate the Appellant from all the offences charged against him. This is consistent with the principle of law that intention or mens rea is an element that needs to be proved directly or indirectly to establish an offence.

(f)  It is also trite law that the burden shouldered by the defence to prove legal insanity is on the balance of probabilities.

(g) The legal defence under Section 84 of the Act 574 requires the defence to prove that the Accused is incapable of knowing the nature of the Accused act or that his action is wrong or contrary to the law at the time of committing the act due to unsoundness of mind.

(h)  This legal insanity is for the Court to decide but surely the medical evidence and other relevant evidence need to be considered.

(i)  In this regard, the antecedents and the subsequent conduct of the Accused are also relevant to show the state of mind of the Accused at the time of committing the act.

(j)   In the present case, the starting point here is that the Appellant had elected to remain silent when he was called to enter his defence. The Appellant had taken the position not to provide any evidence especially, to prove his defence of legal insanity which the law requires, on the balance of probabilities.

(k)  At this juncture, it is relevant to recapitulate the settled principle of law that at the end of the prosecution case, the prosecution must establish a prima facie case by adducing evidence that can be overthrown by evidence in rebuttal.

(l)   Therefore, if the Accused chose to remain silent which entails no evidence in rebuttal, the Accused must be convicted.

(m) In Balachandran v Public Prosecutor [2005] 2 MLJ 301, the Federal Court explained as follows:

“Section 180(1) makes it clear that the standard of proof on the prosecution at the close of its case is to make out a prima facie case while Section 182A(1) enunciates that at the conclusion of the trial the court shall consider all the evidence adduced and decide whether the prosecution has proved its case beyond reasonable doubt. The standard of proof on the prosecution at the end of its case and at the end of the whole case has thus been statutorily spelt out in clear terms. The submission made must therefore be ratiocinated against the background of the meaning of the phrase ‘prima facie case’ in Section 180.”

(n) Coming back to the present case, based on the evidence adduced by the prosecution and the credibility of witnesses, the trial judge found that the prosecution had proved a prima facie case against the Appellant for all the charges.

(o) Thus, when the Appellant remained silent with no evidence in rebuttal, it is perfectly correct for the trial judge to convict the Appellant.

(p)  The Court was also minded of the law that, at the conclusion of the trial, the trial judge must analyze all available evidence produced in the trial as required under Section 182A(1) of the Act 593.

(q) In this case, the only piece of evidence available hinges on by the defence is the psychiatric report by Dr Badiah. This report and the maker were not subject to any cross-examination as Dr Badiah had passed away before the trial and SD1 has no knowledge of the contents of the report.

(r)   Thus, the Court found that Dr Badiah’s report alone was insufficient to prove legal insanity in  which the Appellant was incapable of knowing the nature of the act or he was incapable of knowing what he was doing was wrong or contrary to law.

(s)  On this fact, the Court agreed with the finding of the trial judge that the defence had failed to prove insanity on the balance of probabilities.

(t)  Viewed in totality, the Appellant’s conduct showed that the Appellant was conscious of what he did at the material time and knew that what he did was wrong and against the law.

(u)  Here, the Court found the Appellant’s conduct supports the finding of the trial judge that the Appellant was not insane when committing the act of murder and intended to commit murder.

(v)  Furthermore, the severe and multiple injuries suffered by all of the victims, as documented in post mortems and medical reports, did not support the contention that they were committed by someone who was unaware of the nature of the act.

(w) The injuries inflicted on the victims led to the reasonable conclusion that they were inflicted by a person who was aware of the act and intended to commit it as well as ensure its success.

(x)  Authorities seem to suggest that the absence of motive is an element that supports the defence of insanity. However, in the present case, the motive revealed by the Appellant to SP9 is to take revenge against SP9’s family. Hence, with a clear motive, together with the evidence alluded to earlier, the Appellant’s defence of legal insanity is bereft of any merit.

(y)  Again, the Court reiterated that there is no evidence by the defence that the Appellant was insane at the material time and did not know what he did was wrong when the Appellant elected to remain silent and Dr Badiah’s psychiatric report was not substantiated.

(z)  In conclusion, the Court determined that, on the balance of probabilities, the Appellant had failed to prove the statutory defence under Section 84 or Section 85(2)(b) of the Act 574.

2.  The non-compliance with Section 343(1) and 343(3) of the Act 593.

(a)  On this issue, counsel for the Appellant submitted that on 4 July 2017 when the Appellant was brought before the Magistrate for mention of the Appellant’s case, the prosecution had failed to inform the Magistrate that a psychiatric report dated 18 June 2017 from Dr Badiah had already been obtained.

(b)  In addition, the counsel for Appellant asserted that the prosecution had failed to tender the report as an exhibit in the Magistrate Court. Accordingly, counsel for the Appellant contended breach of Section 343(1) and 343(3) of the Act 593.

(c) In the present case, upon the application by the prosecution under that Section 342 of the Act 593, the Appellant was sent to Hospital Permai, Johor Bahru for observation as to his mental condition.

(d) Having examined and based on observations made on the Appellant, Dr Badiah then prepared the Appellant’s psychiatric report dated 18 June 2017. In her report, Dr Badiah certified that the Appellant is of sound mind and capable of making his defence.

(e)  Further, at the trial in the High Court, the Appellant made his defence by raising the statutory defence of insanity.

(f)  In such circumstances, the Court did not find any non-compliance with Section 343(1) or 343(3) of the Act 593.

(g)  Further, the Court decided that there is no miscarriage of justice against the Appellant or any prejudicial effect on the Appellant regarding the same issue. As such, the counsel for the Appellant’s contention is untenable.

Decision 1.     The Court of Appeal dismissed the appeal and the High Court decisions on convictions and sentences are affirmed.
Key Take Away 1.     According to Section 84 of the Act 574, nothing constitutes an offence if it is committed by a person who, at the time of commission, is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law.

 

2.      A distinction exists between the concepts of legal insanity and medical insanity. Not all forms of insanity absolve a person of criminal responsibility.

 

3.      Section 84 of the Act 574 provides that exemption only for legal insanity. The type of insanity addressed by Section 84 of the Act 574 is one that impairs a person’s cognitive faculties.

 

4.      To conclude, in order to invoke the exception under Section 84 of the Act 574, its nature and extent must be such that the offender is rendered incapable of knowing the nature of his act, or that what he is doing is wrong or against the law.

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