Mohannad Taha bin Ismail v Public Prosecutor [2013] 4 MLJ 387

Mohannad Taha bin Ismail v Public Prosecutor [2013] 4 MLJ 387

Court of Appeal (Putrajaya)

Child Abuse 

Facts 1.     Ellina Mualad Mahather (‘SP2’) is the natural mother of the Deceased child, who was born on 27 September 2006. SP2 was earlier married to one Ayman Hussin Mahmod. After their divorce, SP2 and the Appellant became a couple, and they stayed together with the deceased child.

2.     At the beginning, the relationship between the Appellant and the child was good. The child used to call the Appellant ‘Baba’. Things changed when the Appellant started to beat the child, sometimes with his hand, sometimes with clothes hanger or a ruler.

3.     The beatings took place when SP2 was at work. When SP2 returned from work, the child would complain to her, and she had seen bruises on the child’s body.

4.     SP2 also witnessed the Appellant beating the child during Saturdays and Sundays, when she was not working and she tried to put a stop to the abuse but was scolded by the Appellant. The Appellant also prevented SP2 from taking the child to the hospital.

5.     At the material time, they were staying in a condominium at Tower 9. SP2 was working as an administration executive at JPZ Construction & Engineering Sdn Bhd whilst the appellant was a drop-out from Lim Kok Wing University. While she worked, the Appellant cared for the child.

6.     A week before the tragedy, the child complained to SP2 that the Appellant had beaten her. SP2 observed that there were bruises on the child’s face and her head was swollen. After the incident, the child was having urinary problems.

7.     On 12 October 2009, SP2 left for work at 5.30am. Before she left the house, SP2 observed that her daughter was lying on the sofa and was drinking milk. Her physical condition was fine except for some old injuries on the face and head that were almost healed.

8.     At about 11.30am, SP2 received a call from the Appellant. The Appellant complained angrily that the child urinated uncontrollably and he would punish her. SP2 told the Appellant to ignore it.

9.     At about 2.30pm, the Appellant called SP2 and informed her that the child was having some eye-sight problem as she could not see. The Appellant also told SP2 that the child had hit herself on the sliding door.

10.  The Appellant said he would go to the security guard to borrow a torchlight to check on her eyes but SP2 told the Appellant to call later as she was not free.

11.  At about 4.30pm, the Appellant called again, this time to say that the child was in coma. The Appellant sounded panicky and the Appellant said that he would come and fetch her in a taxi.

12.  At the same time SP2 had asked her employer to leave early. The Appellant came to SP2’s office at 5.30pm and they went to Giant to buy pampers.

13.  They returned home at about 7.30pm. On arrival, SP2 saw that the child was in a serious condition as she was having difficulty in breathing and several injuries on her face. Sadden, both SP2 and the Appellant started crying.

14.  After about 20 minutes, the child stopped breathing. The Appellant then tried to perform CPR to revive the child but to no avail. SP2 suggested that they should bring the child to the hospital but the Appellant refused as he was afraid that he might be arrested and faulted for beating the child.

15.  SP2 suggested that they blamed the Indonesian maid for harming the child. The Appellant finally relented and they rushed the child to the Kajang Hospital.

16.  The child was brought to the emergency ward but was pronounced dead. According to Dr Rageswary Marappan (‘SP9’), the initial examination showed that the child was already dead when taken to receive treatment.

17.  Further inspections showed signs of bruises ranging from various colours on the forehead, arms, legs and body of the victim. She also found evidence that the child could have been sexually abused.

18.  Autopsy on the victim’s body was performed by the pathologists, Dr Abdul Karim bin Hj Tajudin (‘SP3’). He confirmed that the child’s cause of death was ‘massive subdural haematoma due to violent shaking’.

19.  At the High Court, the Appellant was convicted for the charge of murder, an offence under Section 302 of the Penal Code (Act 574) and sentenced to death.

Issue 1.     Whether the learned trial judge misdirected himself when he failed to conduct a maximum evaluation on the evidence adduced by the prosecution.

2.     Whether the learned trial judge misdirected himself when he failed to appreciate the defence case.

Ratios 1.     There is no prima facie case of murder

(a) The Appellant submitted that the trial judge should have tested SP2’s evidence from various angles ie-

(i)  motive;

(ii) the fact that SP2 had lied in her police report; and

(iii)  SP2 had only complained of the alleged abused by the Appellant for the first time when she was desperate because she was the real abuser of the child.

(b)    The Court could not accept the contention after carefully scrutinised the records and found that the learned trial judge had in his judgment, tested SP2’s evidence from various angles.

(c)    The learned trial judge had directed his attention to the analysis of SP2’s evidence. SP2 said she was not afraid that she will be charged with an offence of murder, but for making a false report.

(d)    The Court found that the learned trial judge had specifically addressed the issue of the false report in which the prosecution had come clean when SP2 admitted in examination-in-chief that she made a false report. SP2 gave various reasons for having done so-

(i)      she felt pressured when the report was made;

(ii)     she was fearful as she did not know the actual cause of her daughter’s injuries;

(iii)    she had to come up with the idea that the maid had beaten her child so to convince the Appellant from to allow her to bring the child to the hospital; and

(iv)   she was confused and she still cared for the Appellant. She was worried that the Appellant will be arrested and their lives will be affected.

(e)    The Court believed that the Court would be very slow if the Court disturbed the finding of the trial judge on the credibility of witnesses as it is within the purview of the trial judge who has the audio visual advantage in assessing the witness in accordance with the case of Andy bin Bagindah v Public Prosecutor [2000] 3 MLJ 644.

(f)      The pathologist (‘SP3’) has described the cause of death as ‘massive subdural haematoma due to violent shaking’. Therefore, the Appellant contended that the learned trial judge had misdirected himself when he failed to appreciate that there is no evidence by SP2 of SP12 (grandfather of the deceased child) to show that the Appellant had at any point of time violently shaken the child. There was indeed no maximum evaluation.

(g)    In this instant case, there is no dispute that the evidence adduced by the prosecution is wholly circumstantial in nature.

(h)    The law on circumstantial evidence is illustrated in Dato Mokhtar bin Hashim & Anor v Public Prosecutor [1983] 2 MLJ 232 where the Federal Court stated that-

“Where circumstantial evidence is the basis of the prosecution case the evidence proved must irresistibly point to one and only one conclusion, the guilt of the accused, but in a case tried without a jury the failure by the court to expressly state this is not fatal and it would suffice if it merely says that it is satisfied as to the guilt of the accused beyond reasonable doubt”.

(i)       It is clear from the case cited above that the circumstantial evidence that proves the guilt of the Appellant must be fully established by the prosecution. Such evidence must show that only the Appellant had committed or carried out an act or several acts that had caused the death of the child.

(j)       In the instant case, the Court was in agreement with the learned trial judge that there is sufficient evidence that proved the nexus between the Accused and the death of the child. The evidence may be summarised as follows:

(i)   At the material time, the Appellant was alone with the child;

(ii) According to SP3, the shaking event occurred repeatedly within a week. The injury sustained could affect the urinary system and caused the victim to fall into unconsciousness;

(iii) This was consistent with SP2’s evidence that the child had complained to her a week prior to her death that the appellant had abused her. Since then, the child was having urinary problems;

(iv) On that fateful day, the Appellant informed SP2 that the child urinated uncontrollably;

(v) The child fallen into unconsciousness on that day; and

(vi) The Appellant’s conduct and his reluctance to bring the child to receive medical treatment were also relevant.

(k)     Based on the above, the Court concurred with the learned trial judge’s finding that the intention to cause bodily injuries could not be accidental or unintentional.

(l)       In addition, the trial judge had fully considered the circumstantial evidence that existed in this case and had subjected them to a maximum evaluation. Therefore, the Court have no reason to interfere with the finding of the trial judge.

2.     The failure of the trial judge to appreciate the defence’s case.

(a)    The Appellant’s version of events that took place on 12 October 2009. SP2 left for work between 6–7am in the morning and he denied having called SP2 at about 11.30am to complain that the child had urinated as the child was wearing pampers all the time.

(b)    On the same morning, the child hit her head to the master bedroom’s door knob. At about 12 noon, the Appellant prepared milk for her but she told the Appellant that she could not see. The child did not response to the light when the Appellant checked her eye-sight with a torchlight which he borrowed from the guardhouse.

(c)    The Appellant then called SP2 and told her that the child could not see and wanted to take her to the hospital. However, SP2 did not allow because the Appellant had no money, he was not the biological father and he had overstayed in Malaysia without valid identification documents.

(d)    The Appellant then went to the guard house again attempted to sell his mobile phone to raise some money but could not do so.

(e)    The Appellant then called SP2 informing her that the child was in coma and asked her to come back quickly. The Appellant then took a taxi to fetch SP2. On the way back SP2 wanted to stop at Giant to buy pampers.

(f)      When they returned home, the child was lying on a sofa. The Appellant wanted to take her to the hospital and was again refused by SP2. The Appellant then went to take his shower.

(g)    15 minutes later, SP2 cried out saying ‘my daughter died’. Both SP2 and the Appellant performed CPR to revive the child but failed. He placed two fingers on the child’s chest while pressing. According to the Appellant, it was done gently.

(h)    The child was then rushed to the hospital but was pronounced dead on arrival.

(i)       The Appellant agreed that the police report to be lodged in the manner suggested by SP2 and only then the child be brought to the hospital. He denied causing the child’s death. The Appellant said he never abused the child and it was SP2 who was abusing the child.

(j)       The Appellant narrated that SP2 had beaten the child when they were staying at Tower 33. SP2 hit the child’s back using a mopping stick, and hit the child’s genital area using a towel.

(k)     However, according to the Court, the Appellant’s evidence, when tested against the prosecution’s evidence, is in conflict with, or outweigh by, the proved facts of the case. The reasons are as follows:

(i)      The Appellant stated that SP2 had beaten the child when they were staying at Tower 33. Yet SP12 who was also staying together with them when the alleged beatings took place stated in the affirmative that SP2 had never abused the child;

(ii)     The allegation that SP2 hit the child with a mopping stick and the towel was also rebutted by SP3’s evidence. The pathologist stated that the injuries found on the child’s back could only be caused by fist punches. The injury on the child’s pubic was caused by someone pressing a finger into her genital area;

(iii)    The Appellant said that the child hit the doorknob of the master bedroom.  The photograph (exh P6(13)) showed that it was a pointed doorknob in the shape of a ‘x’. The Appellant’s narration was totally inconsistent with the actual injury sustained by the child in which the pathologist described that the injury was caused by the knuckle;

(iv)   Further, ASP Zuraimi (‘SP13’), the forensic officer also could not find any blood stain on any part of the bedroom door; and

(v)    The fact regarding the CPR was done gently was also rebutted by SP3’s evidence. The pathologist also described that the fracture on the child’s fifth and sixth rib was caused by severe pressure applied during CPR.

(l)    Another issue to be addressed is the Appellant’s weak disposition and his unreasonable behaviour. Based upon the Appellant’s narrative, he could not bring the child to the hospital because SP2 forbid him to do so.

(m)   If he was genuine to bring the child to seek medical treatment, he would not have left the child unattended when he fetched SP2 from her office. The Appellant also agreed with the prosecution that he could have brought the child along when he fetched SP2 from the office, and they could go straight to the hospital.

(n)     The above conduct has greatly affected the probability of the Appellant’s version of the case, especially his main defence that his relationship with the deceased child was good and he never abused the child.

(o)     Therefore, the Court was of the view that the learned trial judge has considered and weighed the defence put up by the Appellant adequately as the learned trial judge has viewed the whole of the evidence objectively and from all angles. Thus, there is no serious non-direction which amounts to a misdirection by the learned judge.

(p)     To conclude, the learned trial judge has considered the relevant evidence adduced at the trial, evaluated the relevant circumstances and assessed the credibility of the witnesses before arriving at the conclusion that the prosecution has established its case beyond reasonable doubt and the Appellant has failed to raise a reasonable doubt on the prosecution’s case.

Decision 1.     The Court of Appeal dismissed the appeal and affirmed the conviction and sentence passed by the High Court.
Key Take Away 1.     Pursuant to Section 300(c) of the Act 574, it is trite law that to succeed in any murder trial, the prosecution must establish-

(a)  the death of the deceased;

(b)  the death was caused by the accused; and

(c)  the accused intended to bodily injury sufficient in the ordinary cause of nature to cause death.

2.     Therefore, if the Court finds that all of the elements listed above exist and that the intent to cause bodily harm cannot be accidental or unintentional, the Court can be considered to have given all of the evidence presented by the prosecution a thorough examination.

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