The admissibility of confessions and the handling of accomplice testimony are critical in ensuring a fair trial.

Muhamad Kamil Awang J:

All the three appellants herein were jointly charged for an offence of rape punishable under s. 376 of the Penal Code and read together with s. 34 of the same Code.

It must be noted from the outset that four persons were originally charged with the said offence. Prior to the commencement of the trial, the prosecution applied for the 4th accused to be discharged not amounting to acquittal and the said application was granted by the learned Sessions Court judge, which consequently lead the 4th accused to become a prosecution witness (PW1).

At the conclusion of the trial, all the three appellants were convicted and sentenced to an imprisonment term of 13 years and to be whipped with ten strokes of the rotan. Being dissatisfied with the said decision they appealed to this court.

As the facts of this case have been comprehensively laid down in the judgment of the learned Sessions Court judge, I do not see any purpose in repeating them herein.

Before deliberating further, it must be emphasised that all the three appeals are considered together using the outline of the submission by the learned counsel for the 1st appellant as the focus and applying the same to the other two appeals, since the grounds of the three appeals are somewhat similar.

Firstly, the learned counsel for the 1st appellant submitted that the learned Sessions Court judge erred in admitting the cautioned statement of the 1st appellant. In furtherance thereto, it was alleged that the making of the cautioned statement by the 1st appellant was caused by threat either directly or indirectly. Specifically, the learned counsel for the 1st appellant referred to the incident where the 1st appellant was interrogated for a continuous period of about six hours from 5.30pm to 11.35pm on 20 March 1994 without any dinner given to him. In another occasion, it was alleged that the 1st appellant was assaulted by the investigation officer which was witnessed by the 2nd appellant. At p. 46 of the Record of Appeal, the investigation officer (PW12) in reply to the question posed during cross examination said:

The first meeting was very long. I asked him matters relating to the case. I spent six hours just asking questions about the case. I have a strong desire to solve this case. I really thoroughly questioned the 1st accused. I got upset if what 1st accused said did not tally with what the complainant had said.

Further down the line at p. 47 of the Record of Appeal, PW12 explained that:

We took a break for dinner in the six hours interview. I am not sure where I had my dinner. I must have given him dinner but I am not very sure. Normally arrangement is made that the detainee be given food unless the detainee refused.

On the allegation of assault of the 1st appellant which was witnessed by the 2nd appellant, PW12 conceded that there were two or three meetings where both the appellants were present during the interrogation but denied assaulting anyone of them.

It is also pertinent to note that the cautioned statement was recorded on 24 March 1994 at 1.20pm and the 1st appellant was taken out practically everyday for interrogation after his arrest on 20 March 1994. Having taken the allegations and the whole circumstances of this case into consideration, this court is of the view that the prosecution failed to establish beyond reasonable doubt that the cautioned statement of the 1st appellant was given voluntarily. In coming to this decision, this court adopted the remarks of Syed Agil Barakbah J (as he then was) in the case of Mohamed Yusof bin Haji Ahmad v. Public Prosecutor at p. 169 as follows:

The word "appears" indicates a lesser degree of probability than "proved" as defined in section 3. A well-grounded suspicion based on the facts and surrounding circumstances may exclude a confession. Since proof of inducement or threat is difficult and in many cases impossible of attainment at that stage, the discretion of the court is unfettered by the concrete