Pubalan A/L Peremal v Public Prosecutor [2020] MLJ 542

Federal Court (Putrajaya)

Murder

Facts

1. The Appellant was charged with murder under section 302 of the Penal Code (Act 574).  The incident of this case happened on 4 November 2013 at the Appellant’s family house together with his two brothers in law and one of them is Murali a/l Doraisamy (“the Deceased”).

2. The Appellant was planning to hold a gathering with his workmates in conjunction with the Deepavali celebration.  However, the preparation was disrupted by the Appellant’s brother in laws and their aunties.

3. Due to the estranged relationship between the Appellant and his in laws, the prosecution alleged that the Appellant had attacked the deceased with a sharp object.

4. The Appellant via a phone call had informed his wife that he had stabbed the deceased.  Later, the Appellant’s wife went to the house and found that the Deceased was still in a conscious state and had told the Appellant’s wife that the Appellant was the one who assaulted him and the scene was witnessed by two other witnesses.

5.  Based on the post mortem report made by the forensic pathologist (expert opinion), there were 19 incised wounds on Deceased’s body and testified that the cause of death was ‘Multiple Incised Wounds’.

6. At the High Court, the Appellant was convicted for murder and was sentenced to death.  The Appellant then appealed to the Court of Appeal against the conviction and the sentence was dismissed.

Issue

1. Whether the learned trial judge was erred in convicting the Appellant under Section 302 of the Penal Code (Act 574)?

(a) In a book entitled Forensic Pathology, Principles and Practice, the role of a forensic pathologist are as follows:

(i) before giving any testimony, the forensic pathologist should be aware of his role during the legal process;

(ii) the ‘testimony’ actually starts in the autopsy room, where the anatomic studies are conducted;

(iii) the forensic pathologist does not simply testify as to the cause and manner of death.  The testimony of the forensic pathologist will be focused on the results of the autopsy and the findings;

(iv) to assess how a death occurred and may be questioned on various aspect of death such as what type of instrument may have been used to cause the injury;

(v) the observations made by the forensic pathologist must be of the highest professional calibre and be completely and thoroughly documented;

(vi) the opinion of the forensic pathologist cannot be biased in favour of or against the prosecution or defence.

(b) According to the post-mortem report, there were 19 incised wounds on the deceased though none of them are fatal wounds.

2.     The distinction between culpable homicide and murder

(a) Section 299 of the Penal Code (Act 574) states that-

“Culpable homicide

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.

(b) Section 300 of the Penal Code (Act 574) states that-

“Murder

Except in the cases hereinafter excepted, culpable homicide is murder-

(a)   if the act by which the death is caused is done with the intention of causing death;

(b)   if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;

(c)   if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

(d)    if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid”.  

(c)  In this case, it is crucial to distinguish the definitions of culpable homicide and murder  since there is no evidence on the nature of injuries.

(d) Based on the post mortem report, the nature of the injuries suffered by the Deceased constitute an intention on the part of the Appellant to cause bodily injuries to the Deceased.

(e)  The crucial question that should be determined in this case is whether the Appellant intended to cause such bodily injuries as he knew likely to cause death.  The forensic pathologist should have been asked to give his opinion on its likely and natural effects but none of these questions were asked.

(f)   As there is no evidence on the nature of the injury, then the offence in which the Appellant should have been convicted is culpable homicide for such bodily injury as it likely to cause death and not murder.

(g) Therefore, the Court of Appeal has set aside the conviction of murder by the trial Court and substitute it with culpable homicide not amounting to murder under limb (a) of Section 304 of Act 574-

“Punishment for culpable homicide not amounting to murder

304. Whoever commits culpable homicide not amounting to murder shall be punished—

 (a) with imprisonment for a term which may extend to thirty years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death;”.

“Opinions of experts

45. (1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions, the opinions upon that point of persons specially skilled in that foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger impressions, are relevant facts

(2) Such persons are called experts”.

2. An expert witness is a person qualified to testify in court regarding the facts of a case due to his level of specialised knowledge or ability in a certain subject.

3. The primary responsibility of an expert witness is to present the court with independent and unbiased evidence.  An expert witness has a responsibility to advise the court on the subjects in which he is qualified.