Gill CJ (delivering judgement of the Court):

The appellant was convicted on a charge of murder under s. 302 of the Penal Code at the High Court, Kuantan on 20 February 1974 and sentenced to death. We allowed his appeal and quashed the conviction and sentence. We now give our reasons for doing so.

We regret having to make a general observation that in our view the presentation of the case by the prosecution was poor. There were several grounds of appeal with a lot of justification for complaint behind them.

Now the trial Judge had indicated to the jury that there was "no direct evidence in the sense that the prosecution have not produced witnesses to say they saw someone attacking the deceased. But in law a fact can be proved by indirect evidence or circumstantial evidence which can show who was the person who did it." The only other time he mentioned circumstantial evidence was in these terms: "Although there is no direct evidence, I think there is circumstantial evidence - and it is said that circumstantial evidence can have the accuracy of mathematics."

In our view, with respect to the trial Judge, such direction to the jury seems inadequate. He was referred to Karam Singh V. Public Prosecutor where this Court said:

In a case where the prosecution relies on circumstantial evidence, such evidence must be inconsistent with any other hypothesis than that of the guilt of the accused."

In Hodge's case (1838) 168 ER 1136, 1137 which was made up of circumstances entirely, Alderson B told the jury that, before they could find the prisoner guilty, they must be satisfied,

not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person."

In Plomp v. The Queen [1963] 110 CLR 234, 243 Dixon CJ in referring to the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances, cited the following passage from Martin v. Osborne [1936] 55 CLR 367, 375.

If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of fact to be proved is so high that the contrary cannot reasonably be supposed. The circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The moral tendencies of persons, their proneness to acts or omissions of a particular description, their reputations and their associations are in general not matters which it is lawful to take into account, and evidence disclosing them, if not otherwise relevant, is rigidly excluded."

Lord Morris of Borth-Y-Gest in McGreevy v. Director of Public Prosecutions [1973] CAR 424, 435 said:

In a case in which inferences may have to be drawn by a jury from such facts as are found by them, a Judge will wish to give the jury guidance as to their approach and in giving that guidance he will certainly be assisted by having in mind what was said by Alderson, B and by Dixon CJ and by others who have given expression to the same line of thought. To the same effect were the words used by Lord Normand in Teper v. R [1952] AC 480 when at p. 498 he said: 'Circumstantial evidence may sometimes be conclusive, but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on anothe