MISS ROSSARIN NUEKAEW v PUBLIC PROSECUTOR [2016] 2 MLJ 203

 

MISS ROSSARIN NUEKAEW v PUBLIC PROSECUTOR [2016] 2 MLJ 203

Court of Appeal (Putrajaya)

First Information Report

Facts 1.     The Appellant, a Thailand national was convicted and sentenced to death on 29 October 2014 in the High Court at Alor Setar for trafficking in dangerous drugs.

2.     The Appellant was discovered committing the offence in the vicinity of Shabab Perdana Bus Terminal in Alor Setar after being raided by the police.

3.     The Appellant was seen carrying two bags in each hand and had a handbag slung over her right shoulder.  Upon being approached by the police, the Appellant immediately dropped the two bags while appeared to be anxious.

4.     As the two bags were locked, the police instructed the Appellant to open the bags.  Initially, the Appellant refused to do so but later produced a set of keys and proceeded to open the two bags with the keys.

5.     Upon examination, it is found that the two bags contained eight (8) slabs of compressed dried leaves confirmed as cannabis as defined in Section 2 of the Dangerous Drugs Act 1952 (“Act 234”).

6.     At the end of the trial in the High Court at Alor Setar, the learned trial judge found that the defence of the Appellant was unreasonable and not credible, without taking into account the evidence of the First Information Report (“FIR”).

7.     Hence, the instant appeal is regarding the non-production of the FIR which raised the issue that the learned trial judge ought to have invoked an adverse inference against the prosecution pursuant to Section 114(g) of the Evidence Act 1950 (“Act 56”).

8.     The contention was based on the fact that the non-production of the FIRT was prejudicial to the Appellant by having no opportunity for the defence to examine the oral testimony of the maker of the FIR (“SP2”).

Issue Whether the Respondent may invoke Section 114(g) of Act 56 in order to invoke adverse inference against the prosecution.
Ratios 1.     The Federal Court in Balachandran v Public Prosecutor [2005] 2 MLJ 301 had shed light on the issue of production of FIR as follows:

“The passage just referred to make it patent that the evidentiary value of a first information report is only to contradict the testimony of a witness under s 145 of the Evidence Act 1950 or to corroborate his testimony under s 157 of the said Act the operation of which is as explained in Lim Guan Eng v Public Prosecutor [2000] 2 MLJ 577; [2000] 2 CLJ 541. It is not substantive evidence of its contents. The question that arises for determination, in the circumstances, is whether the failure to adduce in evidence the first information report is capable of an adverse inference being drawn against the prosecution under s 114(g) of the Evidence Act 1950. Where the evidence of a witness does not require to be corroborated in law there is no obligation to tender corroborative evidence to support his testimony. Thus if the case for the prosecution rests solely on the evidence of one witness in such a category there is no requirement in law for his evidence to be corroborated.”

[Emphasis is added]

2.     From the aforesaid precedent case, it was plain that the evidence of SP2 was not required by law to be corroborated.

3.     In any case, the defence is entitled to receive a copy of the report, assuming it was the initial information report and was submitted by SP2, in advance of the trial.

4.     This would allow the defence to utilise it to cast doubt on the reliability of SP2 as the material prosecution witness. However, it can be seen from the proceedings record that the defence made no such move.

5.     Be that as it may, the evidence of SP2 was corroborated by SP3 who was also present with SP2 during the detention of the Appellant.

6.     In all circumstances, the Court found no merit in the Appellant’s contention that that an adverse inference ought to be invoked against the prosecution for the failure to produce the FIR.

7.     The Court also found that no prejudice has been caused to the Appellant in this circumstances.

Decision 1.    The Federal Court dismissed the appeal and affirmed the conviction and sentence by the High Court.
Key Take Away 1. FIR is any first information received by the police pursuant to the commission of an offence.

2.    The objective of the FIR are as follows:

(a)  To obtain early information of alleged criminal activity

(b)  To record the circumstances before the information is forgotten

 

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