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1987 MarsdenLR 402
SUPREME COURT, KUALA LUMPUR
WAN SULEIMAN, SCJ, MOHD.AZMI, SCJ, SYED AGIL BARAKBAH, SCJ
RAMLAN SALLEH – Appellant
Versus
PUBLIC PROSECUTOR – Respondent
CRIMINAL APPEAL NO. 13 OF 1986
For the appellant - G. Naughton Christie; M/s. G.N. Christie & Co.
For the public prosecutor - Ng Aik Guan, Deputy Public Prosecutor
In a criminal jury trial, the presiding judge has a mandatory duty to instruct the jury on all possible alternative verdicts supported by the evidence, even if not specifically raised by the defence, to ensure a fair consideration of the accused's culpability.
Headnote:(A) Penal Code - Section 302 and 304A - Criminal trial - Murder - Culpable homicide not amounting to murder - Causing death by rash or negligent act - Duty of trial Judge to put to the jury all available defences - Failure to present alternative verdict of rash or negligent act where evidence supports such a defence constitutes a fatal error - Summing-up should include all findings reachable from the evidence.
(B) Jury Trial - Direction to jury - Trial Judge's duty to present all possible defences even if not specifically relied upon by the accused - Prejudicial effect of emphasizing certain aspects of a defence while obscuring alternatives - Necessity of ensuring the jury considers all legally relevant outcomes based on evidence.
Facts of the case:
An individual was charged with murder for the death of a superior officer, resulting from the discharge of a firearm. The incident occurred shortly after the individual was informed of the cancellation of scheduled leave. The defence argued that there was no intention to kill but that the shooting was intended only to frighten. The trial judge instructed the jury on murder and culpable homicide not amounting to murder based on provocation, but failed to instruction the jury on the alternative of causing death by a rash or negligent act.
Findings of Court:
The Court concluded that while the trial judge was thorough in presenting the defence of provocation, the failure to provide the jury with the option of a verdict for a rash or negligent act deprived the jury of considering a distinct and supported legal alternative. The thoroughness of the direction regarding provocation inadvertently overshadowed the defence's claim of a lack of murderous intent, thereby leading to an incomplete summing-up.
Issues: Whether the failure of the trial judge to put to the jury the alternative verdict of causing death by a rash or negligent act, in light of the evidence presented, constituted a miscarriage of justice necessitating a retrial.
Ratio Decidendi: The trial judge bears a mandatory duty to put to the jury all available defences and potential verdicts supported by the evidence, regardless of whether they were specifically argued by the defence. Omitting a potential alternative verdict that aligns with the evidence, particularly when other defences are addressed in detail, results in an unbalanced summing-up that excludes legitimate consideration by the fact-finder, rendering the conviction unsafe.
Result: Conviction quashed and retrial ordered.
JUDGMENT
Mohd. Azmi SCJ:
On 16 March 1986, the appellant was convicted for murder in contravention of s. 302 of the Penal Code. He appealed against his conviction and on 23 February 1987 we set aside his conviction and ordered a retrial before another Judge and jury. We now state our reasons for quashing the conviction.
The charge against the appellant was framed as follows:
That you on 25 July 1983 at about 3.30 p.m. in front of Quarters Guard 4th Royal Cavalry Regiment, Lapangan Terbang camp, Sungai Petani, in the district of Kuala Muda, in the state of Kedah, did commit murder by causing the death of one Annuar bin Abd. Hamid, and that you have thereby committed an offence punishable under s. 302 of the Penal Code.
At the relevant time, the appellant was a member of the 4th Royal Cavalry Regiment stationed at Lapangan Terbang camp, Sungai Petani. It was the case for the prosecution that on the date and time as stated in the charge, the appellant was on guardroom duty at the entrance to the military camp when he shot and killed the deceased with M.16 rifle. Altogether about eight shots in two sequence were fired in rapid succession whilst the deceased was entering the camp on a motorcycle as a pillion rider, and one of the three shots which hit him proved to be fatal. The deceased, Sergeant Annuar bin Abd. Hamid, was the appellant's immediate superior officer, and the alleged motive for the shooting was the cancellation of the appellant's six-day leave, as a result of disciplinary proceeding on a traffic charge lodged by the deceased against him for not wearing a crash helmet when riding a motor-cycle. There was evidence that the appellant had been selected to represent his Regiment in rugby, and the purpose of the six-day leave was to enable him to report at the rugby training centre in Ipoh. The deceased had earlier on refused the application for leave on the ground that the appellant had recently taken leave, but the appellant managed to get his leave approved by the other officers. It would appear that it was then that the deceased brought the traffic violation charge against him which resulted in the cancellation of the leave. The appellant was informed of the cancellation at about 2 p.m. and the shooting occurred about one and a half hours later. The learned trial Judge rightly reminded the jury that to constitute murder the prosecution was not obliged to prove motive as distinct from intention to kill, and he also quite properly put to the jury the incident of leave cancellation as a basis for the defence of grave and sudden provocation which would reduce the offence to culpable homicide not amounting to murder. The learned Judge at the end of his 50 page summing-up, directed the jury to consider two possible verdicts:
(i) Guilty of murder
(ii) Guilty of culpable homicide not amounting to murder.
It is reasonable to assume that the jury had considered the defence of provocation and had rejected it, and that they were left with only one other verdict i.e., either guilty or not guilty or murder.
Before us Mr. Christie for the appellant had no reservation in commending the learned trial Judge in the way he had so fairly and painstakingly directed the jury on the law of murder and culpable homicide not amounting to murder, particularly on the defence of provocation. His sole complaint was that the learned trial Judge had omitted completely to put to the jury a third alternative verdict arising from the appellant's defence, namely, guilty of an offence under s. 304A of the Penal Code. for causing death by rash or negligent act. In our view, there was merit in Mr. Christie's complaint having regard to the evidence,although s. 304A had not been specifically raised by him in his submission to the jury. In evidence, the appellant had testified that he was upset when he was informed about the cancellation of his leave, and he was still upset when he went on duty at the guardroom. He was angry with the deceased for being instrumental in
