The prosecution must prove its case beyond reasonable doubt, and gaps in evidence, particularly concerning the expertise of witnesses, can lead to acquittal.

JUDGMENT

Amelati Parnell JC:

Introduction

[1] The Respondent was charged under s 304A of the Penal Code for negligently causing the death of his friend, one Wivi Kinamag, in a hunting accident involving a firearm. The court of the first instance held that a prima facie case had been established, and the Respondent was called to enter his Defence.

[2] The Respondent was acquitted and discharged at the conclusion of the Defence's case.

[3] Dissatisfied with the order made by the learned Magistrate, hence the present appeal filed in by the Appellant on the following grounds:

a) The learned Magistrate had erred in law when he revisited and reconsidered during the Defence stage elements which he had already decided upon when he ruled that a prima facie case had already been made out during the Prosecution stage.

[4] The charge preferred against the Respondent is as follows:

"Bahawa kamu pada 22 Julai 2013 jam lebih kurang 5.00 petang, bertempat di Ladang Sawit Sangi Enterprise, Kg Marak Parak, di dalam daerah Kota Marudu, di dalam Negeri Sabah, telah menyebabkan kematian dengan cuai terhadap orang yang bernama WIVI BIN KINAMAG (L) U/77 THN KPT: 360802-12-5139. Oleh itu kamu telah melakukan suatu kesalahan yang boleh dihukum bawah s 304A Kanun Keseksaan."

Sailent Facts

[5] The salient fact of the case is that on 22 July 2013 at about 5.00 pm., the Victim and Respondent had gone hunting. Armed with self-made firearm (shotgun/bakakuk), they ventured into an oil palm plantation to hunt for wild boars.

[6] There were no others accompanying them, so what followed was not witnessed by anyone other than the victim and the Respondent.

[7] A shot was fired and the victim was hit. As a result of the gunshot, the victim suffered injuries and died.

[8] A while later, the Respondent then went to see the village head/Ketua Kampung (PW 1) and relayed the entire chronology of events and told him that the victim had been shot.

[9] The victim and the Respondent, as they were about to venture into the plantation was witnessed by a fellow villager (PW 2), but he did not witness the events which preceded the shooting or even the shooting itself.

[10] The Prosecution's case depended heavily on forensic evidence and the narrative of the Respondent on what supposedly happened.

Finding Of The Trial court

[11] At the end of the Prosecution case, the learned Magistrate found that a prima facie case had been established by the Prosecution against the Respondent. This finding is recorded as follows: (at pp 148, Appeal Record, Vol 2):

"Having heard and examined the evidences adduced by the prosecution during prosecution stage, and upon maximum evaluation of the evidences, I found that the ingredient of s 304A of the Penal Code has been satisfied and therefore a prima facie case has been made out against the accused. With that the court ordered the accused to enter his defence. 3 options available in adducing his defence are hereby explained to the accused; whether to give sworn evidence, or to give unsworn statement from the dock or finally to remain silent."

[12] The Respondent chose to give evidence on oath. Apart from the Respondent, he also called another witness, one Mekin Barangangon (DW2). The evidence was summarised by the learned Magistrate as follows (at pp 149-150, Appeal Record, Vol 2):

DW1: Miun Mogiring

The accused never disputed the facts that they were hunting on the day of the unfortunate incident. The weather was fine, clear at about 5 in the evening. Along the way to the plantation, they met Samail who was digging the soil to make pathway for his motorcycle. When the DW1 and the deceased reach their destination where it was hilly, they made they own place to sit and seated next to each other. DW1 seated with his eyesight focus on to the upper hill while the deceased eyesight was facing downhill. DW1 confirmed to the photo tendered by prosecution to where they were seated on that evening. At p 16 Line 5-9, DW1 explained what happened next; 'Bila kami duduk tida