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2013 MarsdenLR 2621
FEDERAL COURT PUTRAJAYA
DUIS AKIM & ORS – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 05-14-01-2012(S)]
Identification of witnesses is vital in proving guilt beyond reasonable doubt; the prosecution's failure to establish an alibi led to affirming the conviction despite inconsistencies in testimonies.
Headnote:(A) Penal Code (FMS Cap 45) - Section 302 - Elements of murder and common intention under Section 34 were discussed. The trial judge found a lack of evidence for mens rea and common intention but was reversed by the Court of Appeal. It was established that the prosecution failed to prove reasonable doubt for the appellants' alibi and positively identified the accused. (Paras 10, 13, 22, 25, 35, 40, 109)
(B) Evidence - The conditions for satisfactory identification of witnesses were evaluated, along with the credibility of witness testimonies. Identifying witnesses' reliability is crucial while assessing evidence in totality. (Paras 48-50, 80)
Facts of the case:
The appellants were accused of murdering Welfred Bin Thomas at a Seven Eleven Shop. The prosecution relied heavily on the positive identification by a surviving victim, who claimed to have recognized the attackers for five minutes. Despite inconsistencies in supporting evidence, the Court of Appeal affirmed the conviction. (Paras 1-9, 12-15, 20, 22)
Findings of Court:
The Court of Appeal found that the prosecution proved its case beyond reasonable doubt, highlighting the identification of the appellants and dismissing the trial judge’s view which sustained the alibi. (Paras 109-111)
Issues: The main issues were the burden of proof on the prosecution, the rejection of the appellants' alibi, the validity of the identification evidence, and the implications of common intention. (Paras 20, 108)
Ratio Decidendi: The Court reasoned that positive eyewitness identification outweighed the alibi claims, and emphasized that the presence of mens rea could be inferred from the circumstances of the act. (Paras 26, 30, 37)
Result: Appeals dismissed.
| Table of Content |
|---|
| 1. factual background of murder incident (Para 1 , 1 , 3 , 4 , 5 , 6 , 7 , 8 , 9) |
| 2. appellants' dissatisfaction and petition reasoning (Para 2 , 12 , 14 , 16 , 18 , 19) |
| 3. court's role as appellate in evaluating evidence (Para 20 , 21 , 22 , 23 , 24 , 25) |
| 4. establishing common intention under law (Para 30 , 32 , 34 , 35) |
| 5. deficiencies in defense and credibility of witnesses (Para 38 , 39 , 41 , 42 , 43 , 44) |
| 6. evaluation of the alibi defense (Para 51 , 52 , 53 , 67 , 89 , 91) |
| 7. deficiencies found in defense ultimately leading to conviction (Para 96 , 100 , 101 , 102 , 108) |
[1] The charge against the appellants reads:
"That you all, on the 26th day of May, 2001 at about 2.00am at a Seven Eleven Shop, Donggongon Town, in the District of Penampang, in the State of Sabah, in furtherance of common intention did commit murder by causing the death of one WELFRED BIN THOMAS (M) 23 years, Dusun and that you all have thereby committed an offence punishable under s 302 of the Penal Code (FMS Cap 45) read together with s 34 of the same Code"
[2] The appellants are dissatisfied with the decision of the Court of Appeal setting aside their acquittals by the learned High Court Judge ('learned trial judge') and convicting them of the offence as charged and sentencing them to death. They are appealing to this Court on several grounds. We heard the arguments. We took time to consider all the issues raised by both sides. We have now come to our decision. This is therefore the judgment of the Court.
Brief Factual Background
[3] It was the testimony of PW2 (Robert Majantim) that in the early morning of 26 May 2001 he went to the 7-Eleven store ('the store') at Donggongon Town, Penampang. On arrival, he saw the cash register wide open and blood on the floor. He then saw PW1 (Osmund David) lying on the floor near the door to the storeroom of the store covered with blood but still alive. He asked to be sent to hospital. He was clutching the telephone of the store on the desk in the storeroom. He saw another person lying inside the storeroom who was also covered with blood and motionless.
[4] As the police station was nearby PW2 said that he asked his wife to call the police. Unfortunately she failed to contact the police station. Meanwhile PW2 saw a white vehicle pickup passing by. He stopped it and asked the driver to inform the police.
[5] Soon after the police came to the store. PW1 (Osmund David) was taken to hospital together with the other person in the storeroom.
[6] A post-mortem was carried out on 28 May 2001 at the Queen Elizabeth Hospital on the cause of death of the person PW2 saw in the storeroom. In his report the Pathologist concluded that the death of the deceased, Welfred Bin Thomas (M) ('the deceased'), was caused by multiple stab wounds (12 stabs in total) over the neck and upper back.
[7] The star witness called by the prosecution was PW1. He had survived in the attack. It was his evidence that he had a look at the appellants for at least five minutes when they came to the store. He also identified them during the Identification Parade ('IP') conducted by the police about a month after the incident.
[8] Besides the testimony of PW1 linking the appellants to the murder, there was no other eyewitness who saw the commission of the crime. The results in the forensic investigation were also not much of help to the prosecution.
[9] The blood samples taken from the blood trail that ran from the store to the outside transformer station nearby were tainted and thus not suitable for analysis. The same went with the cigarettes buds collected at the vicinity. An examination of the van allegedly used and searches for blood stained clothes of the appellants proved futile as well. No murder weapon was recovered.
[10] At the end of the prosecution's case, the learned trial judge, after giving the evidence adduced the maximum evaluation, found there was a case to answer and called for the defence of the appellants.
[11] The main defence of the 1
