The prosecution must prove the absence of consent to establish a charge under § 354 of the Penal Code.

[36] In the present appeal, PW1 had lodged a police report (exh P1) after the incident and in cross-examination, he agreed that the statement which he gave to the police is the same as the content of his police report. In his police report, PW1 states that the accused had immediately let go of her daughter, PW4, upon seeing PW1. In his evidence in-chief, PW1 elaborated how he had to pull the accused's hand to free her daughter from the accused and that he saw the accused had pulled PW4 towards him and kissed her while PW4 was pushing the accused with her hands with her feet at a distance from the accused suggesting that PW4 was trying to free herself from the accused. The learned Magistrate in her grounds of judgment did not touch on this issue and did not elaborate the reasons why she chose to hold that PW1 is a credible witness despite this contradiction taking into consideration that PW1 has every reason to make sure that the accused, who has kissed his daughter, pays for what he did to his daughter.

[37] I am of the considered view that this fact is material to establish whether or not PW4 consented to the kiss in light of the fact that it was PW4 who had allowed the accused in and went to level 8 together with the accused, made calls and sent text messages to the accused after the incident to apologise to the accused over what had happened. It is material to determine whether the ingredient of criminal force has in fact been established by the prosecution.

[38] The act of PW4 in making the telephone calls and sending the text messages after the incident is, in my considered view, relevant under s 8 of the Evidence Act 1950 to show whether the accused had kissed PW4 with her consent.

[39] Evidence of conduct is relevant under s 8 of the Evidence Act 1950 if it influences or is influenced by any fact in issue or relevant fact, and whether it was a conduct antecedent or subsequent thereto. (See: Parlan Dadeh v. PP , [2008] 6 MLJ 19). Sarkar on Evidence 15th edn says at p 780:

"The conduct of party to a proceeding or his agent in reference to such proceeding at the time when the facts occurred out of which the proceeding arises, or in reference to any fact in issue or relevant fact, or the conduct of the complainant, is relevant; but the condition precedent to its admissibility as 'conduct' is that it must directly influence or be influenced by a fact in issue or relevant fact and such conduct does not include action resulting from other causes or circumstances. It must be the essential complement of the act done or refused to be done. Conduct includes antecedent or subsequent conduct involving both actions and statements.".

[40] I am of the considered view that the subsequent apologetic conduct of PW4 is relevant to show that the accused had kissed PW4 with the consent of PW4. PW4 had made the telephone calls and sent the text messages many times. Not once or twice. PW4's apologetic conduct is not consistent with the fact that she did not consent to the accused kissing her but was more consistent with the fact that PW4 felt sorry that their activities at level 8 were discovered and the accused were made to bear the brunt. If PW4 had in fact not consented to the kissing by the accused, PW4 would not have made the telephone calls and sent the text messages numerous times in an apologetic manner That is not consistent with the fact that PW4 did not consent to the kissing.

[41] Despite the contradiction between the oral testimony of PW1 and his police report in respect of whether the accused immediately let go of PW4 upon seeing PW1 as stated in his police report or that PW1 had to pull the accused's hand to free PW4 and that he saw the accused had pulled PW4 towards him and kissed her while PW4 was pushing the accused with her hands with her feet at a distance from the accused suggesting that PW4 was trying to free herself from the accused as he said in his oral testimony, the learned Magistrate accepted PWl's evidence although th